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SKK & 5 others v Kenya Ports Authority & 4 others; National Council for Persons with Disabilities & another (Interested Parties) (Constitutional Petition 21 of 2016) [2016] KEHC 2420 (KLR) (27 October 2016) (Judgment)

This judgment has been anonymised to protect personal information in compliance with the law.
SKK & 5 others v Kenya Ports Authority & 4 others; National Council for Persons with Disabilities & another (Interested Parties) (Constitutional Petition 21 of 2016) [2016] KEHC 2420 (KLR) (27 October 2016) (Judgment)
Citation
SKK & 5 others v Kenya Ports Authority & 4 others; National Council for Persons with Disabilities & another (Interested Parties) [2016] KEHC 2420 (KLR)
Media Neutral Citation
[2016] KEHC 2420 (KLR)
Court
High Court
Court station
High Court at Mombasa
Outcome
Dismissed
Case number
Constitutional Petition 21 of 2016
Attorneys
Mr. Akanga, Mr. Mbeyu holding brief Ms. Odindo,
Alternative citations
Stephen Kariuki Kamau & 5 others v Kenya Ports Authority & 6 others [2016] eKLR
Judges
MJA Emukule
Judgment date
27 October 2016
Language
English
Type
Judgment
Collections
Date published
06 December 2023
Case action
Judgment
Court division
Constitutional and Human Rights
Filing county
Mombasa
Order
The Petition herein has no merit at all, and though it deserved to be dismissed with costs, costs would be an additional burden on the Petitioners, the subject of disabilities. However, the costs of air travel by the Second Respondent’s counsel previously ordered, and of counsel of the Second Respondent who attended court on taking this Judgment, shall be paid by the Petitioners. Otherwise each party shall bear its costs.
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1.In their petition dated and filed on May 16, 2016, the petitioners who describe themselves as persons with disabilities and claim that their rights to tax exemption under the Income Tax Act (cap 470, Laws of Kenya) is being violated and/or threatened with violation by the respondents requirements to subject them to medical re-examination to confirm their status as Persons With Disabilities, and consequently entitled to tax exemption.
2.The petitioners claim that the respondents have no such power, and that the actions in particular of the first and second respondents are in violation of the provisions of Persons With Disabilities Act (cap 133, Laws of Keya). The petitioners therefore sought the orders following –(1)a conservatory order to issue restraining the respondents herein by themselves, their members, servants or agents or otherwise howsoever from carrying out a medical re-examination or a review of the status of the petitioners Tax Exemption Certificates without participation of the first and second interested parties pending the hearing and determination of the petition;(2)a declaration that the petitioners fundamental rights have been violated;(3)a declaration that the medical re-examination carried out by the first and fourth respondents and the current one, to be carried out by the third respondent constitutes a violation of the petitioners constitutional rights and are thus null and void;(4)without prejudice to the foregoing, and in the alternative, a declaration that in the event of medical re-examination, the same be carried out by the first and the second interested parties and recommendations forwarded to the second respondent in accordance with the provisions of Persons With Disabilities Act (cap 133, Laws of Kenya);(5)an order compelling the respondents to compensate the petitioners for breach of their fundamental human rights;(6)an order that costs of and consequent upon this petition be paid and borne by the respondents and all other or such reliefs as the court may deem just, fit and appropriate to grant.
3.The petition was supported by the grounds on the face thereof, the affidavit of Erastus Muthuri M’Inoti sworn and filed with the petition on May 16, 2016, and with the authority of the other petitioners, granted on May 6, 2016 and signed by Stephen Kariuki Kamau Erastus Muthuri M’Inoti, Violet Mugambi, Eric Ngeno, Japheth Muthuri, Charles Kamau and Zablon Shikuku. Also attached to the said affidavit are various documents showing registration of the petitioners as persons with disabilities.
4.Along with the petition was filed a notice of motion of even date with the petition and which sought conservatory orders pending the hearing and determination of the petition. In the event no conservatory order was granted or issued. The petition was fast-tracked for hearing, and hence this judgment.
5.The petition was also supported by the further affidavit of the first petitioner, Stephen Kariuki Kamau sworn and filed on July 20, 2016, together with the annextures thereto. In addition, the petitioners’ case was also augmented by the submissions of counsel dated and filed on July 19, 2016 together with the authorities relied upon.
6.The petition was however opposed. First by the first respondent through the replying affidavit of Jane K Kamau sworn on June 27, 2010, and filed on June 28, 2010, denying the petitioners’ claims, secondly, the replying affidavit of Maurice Orany for the second respondent, sworn on June 24, 2016 and filed on June 27, 2016 and contends that tax exemption is not an automatic qualification until the Commissioner is satisfied and the person is duly registered on a recommendation given by the National Council for Persons with Disabilities.
7.In addition to the basic pleadings by way of affidavits counsel for the petitioners as well as the respondents filed written submissions in support of their respective positions. The petitioners’ counsel’s submissions are dated and were filed on July 19, 2016. The first, third, fourth and fifth respondents’ counsel’s submissions dated July 13, 2016 were filed on July 15, 2016. The submissions of counsel for the second respondent dated July 12, 2016 were filed on July 13, 2016.
8.The second respondent’s further submissions dated September 29, 2016 were filed on September 30, 2016.
The Petitioners Case
9.The petitioners’ case was argued by Mr Akanga who came on record in place of Ms Jaqueline Kariuki & Associates pursuant to grant of leave to cease acting per their application dated July 14, 2016, and filed on July 15, 2016.
10.The petitioners say that they are persons with disabilities duly registered with the National Council for Persons with Disabilities after following due process for registration, that is to say, following vetting by the Persons with Disability Registration Board established by the Director of Medical Services, the second interested party, pursuant to the provisions of the Persons With Disabilities Act, [cap 133, Laws of Kenya].
11.It was counsel’s argument that once the petitioners are registered by the first interested party, the National Council for Persons with Disabilities, they are then subjected to further vetting by the Kenya Revenue Authority (the second respondent) and that once registered by the second respondent the petitioners are granted certain tax privileges and reliefs, such as tax exemption, on income, and stamp duty on land transactions and the right to work up to the age of sixty (60) years.
12.Counsel submitted that the petitioners have enjoyed these privileges since the year 2013 or for the last three years. For instance counsel submitted, second petitioner is now sixty-three (63) years and has two (2) more years to retire. The first petitioner has an amputated left hand whereas the third petitioner suffers from vision impairment in one eye which he suffered well before being employed with the first respondent.
13.The petitioners therefore contend and are against the notice by the second respondent dated Monday, November 30, 2015, requiring persons living with Disabilities to appear before the second respondent’s Doctor Gordon C Caleb for medical tests, to review/vet on December 3, 2015, and to bring with them, their medical records.
14.Counsel justified the inclusion of the fourth and fifth respondents because they were the persons who were corresponding directly with the petitioners, and are the persons who called the petitioners for further re-vetting. it was the petitioner’s counsel’s contention that since the petitioners had been vetted and registered by the National Council for Persons living with Disabilities, no one single Doctor can revet or review their status. However, he submitted, the petitioners have no objection to being subjected to revetting or review of their status by the National Council for Persons living with Disability.
15.The petitioners’ counsel submitted that in an industrial place where accidents are prone to occur, that medical records are private, and not any Doctor, even an in-house Doctor can review such records, and that not even the team from the second respondent, the Kenya Revenue Authority could purport to revet and certify whether or not they, the petitioners suffer or suffered from the alleged disability.
16.The petitioners, contend, counsel argued, that the actions of the first and second respondents are contrary to the petitioners’ rights to privacy, and have consequently come to court for vindication and protection of their rights.
17.In this regard, counsel also relied upon the authorities annexed to the submissions and urged the court to frame the following issues for determination –(1)whether the petitioners’ constitutional rights have been violated in any way by the respondents, and rely upon the decision of the Employment and Labour (ELRC) in David Lawrence Kigera Gichuki v Aga Khan University Hospital [2014] eKLR, and W. Edgell [1990], All ER 935, And JLN & 2 others v Director Of Medical Services & 4 others, [2014] eKLR.(2)whether the first, third, fourth and fifth respondents acted maliciously and in bad faith in order to set up the petitioners for dismissal or disciplinary action, and urged the court to rely upon the decision of the court in Charles Onyinge Abuso v Kenya Ports Authority & another [2014] eKLR.(3)on the question whether the prayers sought should be granted counsel relied upon the case of Arnacherry Limited v Attorney-General [2014]eKLR where the petitioner was granted damages in the sum of Kshs 3 million and also urged the court to allow the petition with costs to the petitioners.
The First, Third, Fourth and Fifth Respondents’ Case
18.As stated earlier, these respondents’ case in opposition to the petition was urged on their behalf by Mr Wafula instructed by the firm of COOTOW & Associates. Counsel reiterated the averments in the replying affidavit of Jayne W Kamau sworn on June 27, 2016 and the submissions of counsel dated July 13, 2016, and filed on 15th July. 2016.
19.Counsel submitted that the petition was not merited, that it does not disclose any infringement of any constitutional provision, but that it is a normal labour dispute clothed in the garb of a constitutional petition, that it does not meet the prerequisites and requirements of a constitutional petition.
20.The issue, counsel submitted, was purely an internal matter which the first respondent required to establish whether those of its employees who claimed to be persons with disabilities were indeed suffering from any such disability. The act of fact finding, counsel submitted, does not constitute a violation of any constitutional right. The right to privacy, counsel submitted is limited to the extent that the person or persons (in this case the first respondent (KPA) and the second respondent (KRA)) which confer a benefit and privilege to the petitioners are entitled to establishing the facts upon which the disability is suffered and benefit conferred. Until those or such facts are established counsel submitted, the petition herein is premature. Counsel relied upon the provisions of section 107, 109 and 112 of the Evidence Act (cap 80, Laws of Kenya) that he who alleges the existence of a fact must prove. It was counsel’s submission that it is a fact (of which this court should take judicial notice) that the Kenya Ports Authority (the KPA – first respondent) is, after Pay as You Earn (PAYE) taxes, the largest earner of revenue to the exchequer. In this respect, counsel relied upon the decision of the court in Jennifer Nyambura Kamau v Humphrey Mbaka Nandi [2013] eKLR – which affirmed the provisions of section 112 of the Evidence Act that“in civil proceedings when any fact is especially within the knowledge of any party, to those proceedings, the burden of proving or disposing that fact is upon him.”
21.It was counsel’s submission that the notion of coming to the constitutional court for minor infractions of statute is frowned upon by the courts. Counsel placed reliance on the decision of the Privy Council in the case of Harrikissoon v Attorney-general of Trinidad and Tobago [1980] AC 202 where that court said –“The notion that wherever there is a failure by an organ of government or a public authority or public officer to comply with the law this necessarily entails the contravention of some human right or fundamental freedom guaranteed to individuals by chapter 1 of the Constitution is fallacious. The right to apply to High Court under section 6 (our section 23) of the Constitution for redress when any human right or freedom is or is likely to be contravened, is an important safeguard of those rights and freedoms; but its value will be diminished if it is allowed to be misused as a general substitute for the normal procedures of invoking judicial control of administrative action. The mere allegation that a human right has been or is likely to be contravened is not itself sufficient to entitle the applicant to invoke the jurisdiction of the court under the Section if it is apparent that the allegation is frivolous, vexatious or abuse of the process of court, as being solely for the purpose of avoiding the necessity of applying the normal way for appropriate judicial remedy for unlawful administrative action which involves no contravention of any human right or fundamental freedom.”
22.The decision in above case was applied in the case of Alphonse Mwangemi Munga v African Safari Club [2008] eKLR when the court emphasized that –“the point that parties should make use of the normal procedures under the various laws to pursue their remedies instead of all of them moving to the constitutional court and making constitutional issues of what is not. They have as a result lost valuable time to pursue contractual claims and/or to have Industrial Court settle the trade dispute (if any) relating to the matter. The upshot of this petition is that it is an abuse of the court process and it is hereby dismissed.”
23.In conclusion it was the submission of counsel for these respondents that the decision of this court should be guided by the provisions of the Kenya Ports Authority Act (cap 397, Laws of Kenya, and Kenya Revenue Authority Act (cap 469, Laws of Kenya) which statutes place an enormous burden upon both institutions of raising revenue for the operations of the country. So, if a person claims any benefit under these statutes, there would be nothing unlawful or unconstitutional for the said institutions and respondents herein in seeking clarification on the validity of the claim being made by the petitioners for the benefit or privileged.
24.For these reasons counsel for these respondents sought dismissal of the petition with costs.
The Second Respondent’s Case
25.The second respondents as noted above is the Kenya Revenue Authority. Its case was argued by Ms Odundo. It was this respondent’s case and submission by counsel, that the petition was informed and triggered by two events. firstly, the re-assessment by the first respondent of the petitioners’ registration as persons with disability applying the World Health Organization standards to enable them come up with a comprehensive tool for disability mainstreaming, and which exercise was carried out in December, 2015.
26.Following the replying affidavit of Maurice Oray sworn on June 24, 2016, the second respondent’s Commissioner in the Department of Domestic Taxes, counsel submitted that the respondent was not part of the re-assessment, and neither was it to use the first respondent’s report from the re-assessment, when its team first visited the first respondent’s premises on the month of May, 2016.
27.Counsel however submitted that the National Council with Persons with Disability had, in the months of January 2016 organized a Retreat in Machakos where the second respondent received information that tax relief for disability was being abused and was attracting non-deserving cases.
28.The two institutions cited as attracting those members were the Kenya Ports Authority, the first respondent herein, and Mumias Sugar Company Limited. It was consequently counsel’s submission that, having received this information, the second respondent had a duty under its constitutive statute to confirm the correctness of that information.
29.Counsel submitted that the second respondent consequently carried out a compliance test on the exemption on the persons with disability, and that commencing with the first respondent’s personnel granted disability tax exemption benefits under the Persons with Disability Act, [cap 133, Laws of Kenya], and the Disabilities Income Tax Deductions Exemption Order 2010, and in particular rule 6 thereof, and section 56 of the Income Tax Act.
30.Counsel submitted that the second respondent is enjoined by its constituting statute to ensure that the tax base is protected and not abused by persons not entitled to exemption.
31.Accordingly the concerned personnel of the first respondent were prior thereto, informed of the visit by the second respondent’s personnel. Upon the verification visit eighty six (86) people were examined, out of which eighty two (82) cases were found to be deserving of the benefits and privileges and four (4) were found to be suspicious including the second and third petitioners, and were directed to be assessed by the Director of Medical Services, the second interested party on whether the nature of their disability did or did not have an impact on their day to day duties, that is, the constitutional threshold.
32.The disability of the third respondent related to the tip of his finger and similarly of the first petitioner. One employee Violet Mugambi was found to be wearing normal spectacles.
33.Counsel submitted in conclusion that the actions of the second respondent are not in breach of any provision of the Constitution. Counsel noted that the petitioners were in agreement with the second respondent, that they were willing to appear before the Director of Medical Services, the second interested party, for re-assessment of their disability.
34.This respondent, counsel submitted, is a stranger to the third, fourth, fifth and sixth petitioners as they did not appear before the second respondent’s verification team.
35.Relying upon the case of Alex Muriuki v Attorney General & 4 others [2014]eKLR counsel submitted that there are no particulars of the alleged breach or infringement of the Constitution. None of the Certificates of Exemption have been cancelled or revoked as this can only be done following certification by the Director of Medical Services, the second interested party, and concluded that as of now (the hearing of the petition), there was no breach or threat of breach of the petitioners’ rights at all.
36.It was also counsel’s submission that only five (5) million people bear the tax burden in Kenya. For any person to be granted exemption, he/she must meet the constitutional threshold. There would, counsel submitted be a breach of article 209 and 201(b)(ii) of the Constitution if no reassessment was done, as the burden of taxation must be shared fairly.
37.Associating herself with the submissions of counsel for the first respondent and the authorities relied upon by counsel for the first respondent, Miss Odundo urged the court to dismiss the petition.
Submissions in Reply
38.Counsel for the petitioners in reply to the submissions by counsel for the respondents and the interested parties submitted that the whole process was unconstitutional and that the petitioners’ rights to privacy were violated by the respondents and urged the court to so find and allow the petition.
Analysis, Issue and Determination
39.Though counsel for the petitioners emphasized violation of the petitioners right to privacy contrary to article 31 of the Constitution of Kenya, 2010, the petitioners claims are much wider. in addition to the alleged violation or infringement of their right to privacy under article 31, the petitioners also claim firstly, that their individual and collective rights of association among themselves and others, as guaranteed by article 36 of the Constitution, freedom from torture, inhuman and degrading treatment or punishment contrary to article 29(d) and (f), their respective inherent right to human dignity contrary to article 28, and their right to fair administrative action as guaranteed by article 47(1) and (2) of the Constitution (as read with sections 4, 5 and 6) of the Fair Administrative Actions Act, 2015, sections 12, 15 and 35 of the Persons With Disabilities Act, and rule 4(4) of the Persons with Disabilities (Income Tax Deductions and Exemptions) Order 2010.
40.Having set out the petitioners’ claim, and having set out at length the submissions of counsel for the petitioners, the respondents and the interested parties, the issues i discern from all these submissions are firstly, whether there is a justiciable constitutional issue to be determined by the court, and secondly whether the actions by the management of the first and second respondents in calling the petitioners for purposes of assessment of their respective disabilities, and thereby calling into question their continued enjoyment of tax benefits and privileges as persons with disabilities was a violation of their constitutional rights and freedoms as guaranteed in the respective articles of Constitution of Kenya 2010.
41.The respondents contended that no right or freedom of the petitioners as guaranteed by the Constitution was violated or infringed. In particular, the first and second respondents contended that the petition raised no justiciable issue, and that the petition failed the threshold test set out in the case of Anarita Karimi Njeru v Republic [1976-1980]KLR 1272, where the court said –"We would however again stress that if a person seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision of which complains, the provisions said to be infringed and the manner in which they are alleged to be infringed.”
42.These principles were reiterated and affirmed by the Court of Appeal in the case of Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013]eKLR where the court said –“We wish to reaffirm the principle on this question in Anarita Karimi Njeru v Republic (supra). In view of this we hold that the petition before the High Court did not meet the threshold established in that case…the petition was not pleaded with precision as required in constitutional petitions…”
43.The question in this regard is whether the petition herein was pleaded with a reasonable degree of precision in the conformity with the principles in Anarita Karimi Njeru v Republic (supra).
44.Having regard to the petition as a whole, and in particular part C, paragraphs 22, (the freedom from torture, cruel and inhuman treatment and punishment under article 29(d) and (f) (and cannot be limited under article 25), paragraph 23, (the right to human dignity), paragraph 24, (the right of association), paragraph 24, (the right to privacy), and paragraph 25, (the right to fair administrative action) and considering that the petitioners, or those they purport to represent in this petition, are persons who already enjoy certain benefits and privileges under and pursuant to the provisions of Persons With Disabilities Act and under the Persons with Disabilities (Income Tax Deductions and Exemptions) Order 2010, and further considering that they claim that specific rights under specific provisions of the Constitution in relation to their rights under Persons with Disabilities (Income Tax Deductions and Exemptions) Order 2010, have been violated and/or are threatened with violation. I am satisfied that their claim is justiciable and conforms to the threshold established in the case of Anarita Karimi Njeru v Republic (supra).
45.The main question that remains is whether the actions of the first and second respondents were in violation of any of the provisions of the Constitution, the Persons With Disabilities Act, or the Fair Administrative Action Act, 2015, or indeed any of the rules under Persons with Disabilities (Income Tax Deductions and Exemptions) Order 2010. To answer that question, it is necessary to examine the requirements of the relevant provisions of the Constitution and of Persons With Disabilities Act, and in particular the process of being declared a person with a disability. So far as the Constitution is concerned, article 260 defines disability as including –“…any physical, sensory, mental, psychological or other impairment, condition or illness that has, or is perceived by significant sectors of the community to have, a substantial or long term effect on an individual’s ability to carry out ordinary day-to-day activities.”
46.This substantially is the same definition adopted by the Persons With Disabilities Act under section 6 thereof which defines “disability” as meaning –“physical, sensory, mental or other impairment, including any visual, hearing, learning or physical incapability which impacts adversely on social, economic or environmental participation.”
47.For purposes of determining whether any person is suffering from disability as defined in the Constitution and the Persons With Disabilities Act, section 7(1)(c) of the Act provides for registration of persons with disabilities for the second respondent to determine whether any employee of the first respondent is subject to disability as so defined. This is so because the Kenya Revenue Authority Act imposes upon the second respondent the duty to“investigate all claims and information received from any source to the effect that any party has evaded the lawful payment of taxes and to conduct periodic audits for purposes of confirming that proper taxes are declared and paid.”
48.In addition, under section 5 of the Kenya Revenue Authority Act, (cap 469, Laws of Kenya) the second respondent as the agency of the government for the collection and receipt of all revenue is “charged with the administration and enforcement of all tax laws”.
49.This clearly implies the use of best methods to protect the integrity of the tax system, to exercise various controls and monitoring, which in the case at hand, involved investigations, for alleged abuse at the first respondent’s establishment which was singled out as an institution with very many applicants for tax reliefs under the Persons With Disabilities Act.
50.Further under the Persons with Disabilities (Income Tax Deductions and Exemptions) Order, 2010 eligibility for tax exemption is not automatic. The process of qualification must be complied with to the satisfaction of the Commissioner of Inland Revenue, that the person to be declared as a disabled person, is duly registered upon a recommendation of the National Council for Persons with Disabilities.
51.The Commissioner is required to act within sixty (60) days of receipt of a recommendation from the Council, to determine an application for tax exemption. The conditions for determining such an application include –(a)the person’s physical, visual or mental impairment;(b)that such impairment is long term, and(c)the impairment substantially limits the daily activities of the person concerned.
52.Thus, unlike the National Council for the Persons with Disabilities whose interest is about the total population of persons with disability, the interest of the second respondent is only with Persons with Disability who qualify for tax exemption status. This is because the second respondent is responsible for decisions which bring about an efficient and effective administration and integrity of the tax system which includes – taxpayer perceptions, fairness, impartiality, confidentiality and the responsibilities of taxpayers to comply with the law.
53.In this regard therefore the second respondent Commissioner is empowered under the provisions of Persons with Disabilities (Income Tax Deductions and Exemptions) Order 2010 to –“
6.(1)…(2)require for any other information that he may consider necessary to facilitate the determination of an application, including requiring the applicant to appear before him for an interview;(a)the Commissioner shall revoke a tax exemption certificate issued under paragraph 6 if he is satisfied that(a)the status of the applicant has significantly changed in a manner that affects his or her eligibility status for the tax exemption;(b)the applicant omitted material information at the time of ;making the application that if such information was submitted it could have affected his or her eligibility for tax exemption;(3)any person who fraudulently –(a)obtains or applies or attempts to apply to obtain an income tax deduction or exemption, or(b)gives or omits to give any material information, which he or she is required to give under the regulations, commits an offence and is liable to a fine not exceeding ten thousand shillings or imprisonment for a term not exceeding one year, or both such fine and imprisonment.”
54.The petitioners claimed that the privacy of their medical records were revealed unnecessarily, and cited the case of David Lawrence Kigera Gichuki v Aga Khan University Hospital [2014]eKLR in which the court (Mumbi J) considered the cases of privacy of medical records found that disclosure of one of the petitioners’ members medical records was not justified, but declined to grant any damages, but consoled the petitioners with costs of the petition.
55.The question of disclosure of an employee’s or a patient’s medical records is a live and continuous contentious matter and the courts have delivered themselves in many decisions.
56.In Samura Engineering Limited and others v Kenya Revenue Authority cited in Lawrence Kigera Edward Gichuki v Aga Khan University Hospital, the court said –“[23]the right to privacy protects a person’s autonomy. The breach of the right of privacy either involves violation of the law that permits infringement of the right consistent with the limitation provided under article 24 or failure to obtain the consent of the person…”
57.In Kenya Plantation And Agricultural Workers Union v James Finlay (K) Limited [2013] eKLR the court said –“This issue is of particular concern to the court because under sub-article 31(c) of the Constitution, every person has the right to privacy which includes the right not to have information relating to their family or private affairs unnecessarily required or revealed. In the opinion of the court, such right includes the right to have information such as official records, photographs, correspondence, diaries and medical records kept private and confidential. It is the further opinion of the court that in the instant case, the respondent in the discharge of the duty to uphold medical professional ethics of its staff as prescribed in the rules is obligated to take positive steps to prevent intrusion into the privacy of its hospital’s patients.”
58.A further comparative analysis of the case law in Kenya and other jurisdictions clearly shows that the right to privacy is not absolute. I will commence with the Medical Practitioners and Dentists Board (Disciplinary Proceedings) Rules made under the Medical Practitioners and Dentists Act (cap 253 of the Laws of Kenya) which prohibits abuse of professional confidence and provide in rule 8 –“
8. Abuse of professional confidencea practitioner or an institution shall not disclose to a third party information which has been obtained in confidence from a patient or the patient’s guardian, where applicable. The practitioner or institution shall safeguard the confidential information obtained in the cause of practice, teaching, research or other professional duties subject only to such exceptions as are applicable. The following are possible exceptions –(i)the patient or his lawyer may give a valid consent;(ii)information may be required by law or through a court order;(iii)public interest may persuade a practitioner that his/her duty to the community overrides the one of the patient;(iv)information may be given to a relative or appropriate person if in his/her opinion it is undesirable on medical grounds to seek the patient’s consent;(v)in the interest of research and medical education, information may be divulged, but at all times the patient’s name shall not be revealed. A practitioner shall always be prepared to justify his/her action whenever he/she discloses confidential information. Whenever possible, except in the public interest, the practitioner should keep secret the identity of the patient.”
59.In the Kenyan case of JLN & 2 others v Director Of Children Services & 4 others (Petition No 78 of 2014), the petitioners argued that the respondent hospital had violated their right to privacy guaranteed under article 31 by unnecessarily and without just cause disclosing confidential medical information to a third party. The petitioners had also contended that the hospital had breached doctor/patient confidentiality principle by disclosing the details of the surrogacy arrangement between the parties. Citing the English case of W v Edgell [1990]1 All ER 835, the court held that –“…the right to privacy is not absolute. Implicit in the protection accorded is that information relating to family and private matters must not be “unnecessarily revealed”. Indeed counsel for the petitioner submitted that there are instances where the right to privacy in respect of the patient/client relationship may be abridged…”
60.In W v Edgell (supra) Lord Bingham observed-“…the decided cases very clearly establish:(1)that the law recognizes an important public interest in maintaining professional duties of confidence; but(2)that the law treats such duties not as absolute but as liable to be overridden where there is held to be a stronger public interest in disclosure … Thus the public interest in the administration of justice may require a clergyman, a banker, a middleman, a journalist or an accountant to breach his professional duty of confidence. The qualifications of the duty of confidence arise not because that duty is not accorded legal recognition but for the reason clearly given by Lord Goff in his Spy Catcher speech[1988] 3 WLR 776 at 807, quoted by Mr Justice Scott at 710G:“The third limiting principle is of far greater importance. It is that, although the basis of the law’s protection of confidence is that there is a public interest that confidences should be preserved and protected by the law, nevertheless that public interest may be outweighed by some other countervailing public interest which favours disclosure. This limitation may apply, as the learned judge pointed out, to all types of confidential information. It is this limiting principle which may require a court to carry out a balancing operation, weighing the public interest in maintaining confidence against a countervailing public interest favouring disclosure…”
61.Three cases from the United States and one case from Australia will also illustrate that the principle of confidentiality is not absolute.
62.In the United States Supreme Court case of Margaret O’hartigan v Department of Personnel et al, 118 Wn 2d 111, 44 (No 56063-3 En Banc) the court stated that –“…[2] The Supreme Court has identified two types of interests protected by the right to privacy: the right to autonomous decision-making and the right to non-disclosure of intimate personal information, or confidentiality…[3] The interest in confidentiality, or non-disclosure of personal information, has not been recognized by this court as a fundamental right requiring utmost protection. Disclosure of intimate information to governmental agencies is permissible if it is carefully tailored to meet a valid governmental interest, and provided the disclosure is not greater than is reasonably necessary… The right to non-disclosure of personal matters is a valued right meriting constitutional protection. However, the right is not absolute…”
63.In Alexander v Knight, 197 Pa Super 79, 177 A2d 142 (1962), the court held that –“We are of the opinion that members of a profession, especially the medical profession, stand in a confidential or fiduciary capacity as to their patients. They owe their patients more than just medical care for which payment is exacted; there is a duty of total care; that includes and comprehends a duty to aid the patient in litigation, to render reports when necessary and to attend court when needed. That further includes a duty to refuse affirmative assistance to the patient’s antagonist in litigation. The doctor, or course owes a duty of conscience to speak the truth; he need, however, speak only at the proper time …”
64.And in Hague v Williams, 37 NJ 328, 181 A2d 345 (1962), the New Jersey Supreme Court, though it dismissed the plaintiff’s claim in the matter, nonetheless recognized that –“A patient should be entitled to freely disclose his symptoms and condition to his doctor in order to receive proper treatment without fear that those facts may become public property. Only thus can the purpose of the relationship be fulfilled. So here, when the plaintiffs contracted with defendant for services to be performed for their infant child, he was under a general duty not to disclose frivolously the information received from them, or from an examination of the patient… This is not to say that the patient enjoys an absolute right, but rather that he possesses a limited right against such disclosure, subject to exceptions prompted by the supervening interest of society. “
65.In Australia, the Australian Medical Association Guidelines for Doctors on Disclosing Medical Records to Third Parties 2010, provides in section 21 that –“…There may be circumstances where the law authorizes, but does not require, a doctor to disclose information from a patient’s medical record, regardless of whether or not the patient has provided consent. This may include certain types of medical research, for certain health management activities, where there is a serious and imminent threat of harm to the patient or another identifiable person or group of persons, or in a medical emergency.”
66.Section 26 of the said Guidelines also provide that there may be circumstances where the law actually requires a doctor to disclose a patient’s medical record, regardless of whether or not the patient has consented. This also includes circumstances where a statute so requires, or where there has been a sub-poena or court order. In this regard, section 29 of the Guidelines provide that –“Whether disclosure of information from a patient’s medical record is permitted or required by law without patient consent, where appropriate the patient should be informed of that having occurred and this information should be documented in the medical record…”
67.The case law cited above, and the Guidelines aforesaid as well as the Medical Practitioners and Dentist Board (Disciplinary Proceedings) (Procedure) Rules may be summarized into three principles –(i)a medical practitioner or a medical facility (hospital/clinic) is under obligation not to release confidential information about a patient without the patient’s knowledge or consent;(ii)there are however, circumstances in which a medical practitioner or institution may be required to release such information for valid governmental and public interest reasons;(iii)a medical practitioner or institution may be required by law or a court order to release information about a patient without the patient’s consent.
68.I have cited at length the case law and comparable statutory provisions which indicate that though a patient’s medical record or information is protected under article 31 of the Constitution of Kenya, 2010, there are circumstances in which such information may be divulged to a third party because the right to privacy is not absolute. Such personal medical information may be released or divulged by the doctor who treated or cared for the patient, or the institution where the patient was treated or attended to. The reason for this is said to be the overriding interest of the community or society which overrides that of the patient. The disclosure may stem from a court order. The person or third party to whom the information is released must have a legitimate interest.
69.In the case at hand, the petitioners were beneficiaries of certain privileges by way of tax exemptions, as persons with disabilities. They had gone through a process of verification under the Persons With Disabilities Act, and had been so registered and certified by the National Council for the Persons with Disabilities, and consequently granted certain tax exemptions by Persons with Disabilities (Income Tax Deductions and Exemptions) Order 2010. The petitioners and those they represented, enjoyed those privileges at the time of filing the petition herein.
70.Indeed as pleaded by the second respondent, and submitted by its counsel, it is the statutory duty of the second respondent –(a)to maintain the integrity of the income tax system;(b)to protect the tax base in view of permanent erosion, especially the PAYE head;(c)to improve Tax Compliance given that the exemption status apply to a maximum threshold of Kshs 150,000/= monthly;(d)to prevent revenue leakage by ensuring that the exemption status is not being enjoyed by non-deserving tax payers;(e)to sensitize PWDS (persons with disabilities) on the procedure of seeking tax exemption status;(f)to foster the integrity and effective functioning of the tax system including tax-payer perceptions of that integrity;(g)to seek and consider all information useful for policy intervention in determining who among persons with disabilities qualify for tax exemption.
71.Thus having received information that the privileges conferred under the Persons with Disabilities (Income Tax Deductions and Exemptions) Order 2010 were being abused by among others, employees of the first respondent who were registered as persons with disabilities, the first respondent had a legal duty to carry out a review of all its employees subject to disabilities.
72.The first step was the preparation of a Preliminary Report on Assessment of Persons Living with Disabilities employed by the first respondent. According to the letter dated January 12, 2016, addressed by the Head of Administration (one James Kamau to the General Manager Human Resources & Administration, the Report indicated that –“…several of those maintained as being disabled do not qualify to be referred to as disabled and there is need that the recommendations by Head of Medical Services be undertaken to ensure that the Authority has in a place a comprehensive programme on management of disability mainstreaming.
73.The recommendations made included –(a)assessment of those presently classified as incapacitated and mainstreaming those who are otherwise productive as disabled;(b)to compile a comprehensive report that shall form a basis of Disability Policy of the Authority and adopt an assessment tool and criteria for future use.
74.The Head of Administration consequently recommended the formation of a Committee and appointed members to undertake that assignment. It is that Committee which apparently prepared and produced a list of employees who were proved to be not disabled yet they were accessing disability benefits.
75.That list was forwarded by Sylvester K Ndongoli Head of Ethics & Integrity by letter marked “confidential”, dated March 30, 2016, to the General Manager, Human Resources and Administration, and required the latter to confirm from Medical Services Department on whether there were indeed persons who were enjoying disability tax benefits whereas they were not suffering from any disability, incapacity or debilitation, and establish the distinction on the various forms of disability. The letter emphasized that if true, “appropriate action be taken to avoid penalties from KRA and other unnecessary scandals.”
76.In the meantime, the first respondent had informed the second respondent by letter dated March 8, 2016 of the exercise it was undertaking with regard to authentication of persons with disabilities, and that it was receiving the data provided by the first respondent, and advised the first respondent of “its intention of conducting a fact finding mission at a later date.”
77.The second respondent followed its letter of March 8, 2016, with a letter of April 8, 2016 and informed the first respondent that a team of “three officers would visit the first respondent’s premises on a fact finding mission on 9th May to May 14, 2016.” The letter also advised the first respondent that in order to facilitate the exercise, persons with disabilities should be ready with the following documentation –(1)Valid exemption certificate from income tax;(2)Registration Certificate/Identity Card from NCPWD;(3)Latest medical assessment Report;(4)National Identity Card;(5)PIN;(6)Payrolls for periods January, 2014 – March, 2016.
78.The affected staff were also to be informed that they would be required to physically present themselves before the team on the stated dates. There was also a warning notice “that any person holding an exemption certificate for income tax and also fails to appear before the team would have hi/ their certificate revoked.”
79.According to paragraph 21 of the replying affidavit of Maurice Orany following the fact finding mission, the Second respondent’s officers –(1)examined a total of 86 PWD who appeared before the second respondent’s officers of whom 84 are based in Mombasa, while 2 are in Nairobi;(2)out of the 86 PWDs observed, 82 cases were found to deserve (disability benefits), while 4 cases were found to be suspicious as far as their disability was concerned;(3)the four (4) identified for reassessment by the Director of Medical Services at Afya House are(i)EKN – visual;(ii)WEO – Bipolar Temporary Disability;(iii)VM - Visual/Wearing Normal glasses;(iv)EK – tip of finger(4)of the four (4) identified for re-assessment (not revocation as they had not yet been assessed by the Director of Medical Services), only two are petitioners –(i)EKN and(ii)EK
80.The ultimate question is what law informs and empowers the second respondent and by extension the first respondent to summon any of its employees or in this case, the petitioners, and to carry out a re-examination or re-assessment of the petitioners on the status of their disability.
81.The answer to this question is both constitutional and statutory. On the constitutional leg, article 47 of the Constitution of Kenya, 2010 which provision grants every person the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair (article 47(1). The same article provides that if a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has a right to be given written reasons for action. Article 47(3) required Parliament to enact legislation to give effect to this right. The Fair Administrative Action Act 2015 is the legislation which gives effect to the provisions of article 47(1 & 2) of the Constitution.
82.The petitioners were accordingly informed in writing of the reasons and the action the first and second respondents were proposing to take in order to ascertain that the benefits and privileges accorded to the petitioners under the Persons with Disabilities (Income Tax Deductions and Exemptions) Order 2010 were not abused by any of the persons granted such benefits and privileges.
83.The first respondent would be failing in its administrative and legal obligation to ensure that any person with disability and who was a beneficiary of the tax reliefs was legally and therefore constitutionally entitled thereto. It is both a legal and administrative duty of the first respondent under its constituting statute, the Kenya Ports Authority Act, (cap 391, Laws of Kenya) which grants the Authority under Parts IV – V thereof the authority and powers to conduct its business in a manner inter alia to secure that its revenue is not less than sufficient to meet its outgoings. This includes the approval of not only of salaries, and wages, but other forms and conditions and terms of service.
84.Likewise it is the constitutional duty under article 201 of the Constitution for the second respondent to ensure that the public finance system promotes an equitable society where the burden of taxation shall be shared fairly. The Kenya Revenue Authority Act, (cap 469, Laws of Kenya) confers upon the second respondent the jurisdiction to administer and enforce inter alia the Income Tax Act (cap 470, Laws of Kenya, and for that purpose, to assess, collect and account for all revenues in accordance with that Act, and other laws it is entrusted under the said Act, to administer.
85.It is thus clear to me that both the First and second respondents had clear mandate under respective statutes to ensure for purposes of accounting for revenue, that no person including persons with disabilities would abuse the benefits and privileges conferred upon such person or persons under the Persons with Disabilities (Income Tax Deductions and Exemptions) Order, 2010.
86.It is also clear to me that neither the first nor the second respondent breached any of the petitioners’ rights either under the Constitution or the Persons with Disabilities (Income Tax Deductions and Exemptions) Order 2010. The first and second respondents merely informed the petitioners and other staff of the first respondent that they would be re-assessed or re-examined in the course of the respondents’ respective normal duties to protect the integrity and efficiency of the tax system.
87.In effect, the majority of the persons re-assessed and re-examined were found to be persons with disabilities that is, persons whose disability has, or is perceived by a significant sectors of the community to have a substantial or long term effect on an individual’s ability to carry out ordinary day to day activities.
88.Of those four (4) out of the eighty six (86) re-assessed and re-examined, none has been denied the extensive benefits and privileges under the Persons with Disabilities (Income Tax Deductions and Exemptions) Order 2010 or other benefits under section 35 or 36 of the Persons With Disabilities Act, (cap 113, Laws of Kenya). This can only be done after re-assessment and re-examination by the Director of Medical Services, the second interested party. The petitioners themselves say they are willing to be so re-assessed and/or re-examined. The respondents too are well aware of that requirement.
89.The functions of the first interested party, (the National Council for Persons with Disabilities) set out in Section 7 of the Persons With Disabilities Act, do not include the conferment of tax benefits or privileges. The registration of persons with disabilities is only a first step and does not constitute an exemption from tax. That is a function of the Minister responsible for matters relating to finance and revenue, and to whom the second respondent is accountable.
90.The re-assessment and re-examination of the petitioners and other persons with disabilities was a lawful administrative action by the first and second respondents and did not constitute any violation of any provisions of the Constitution or articles 25, 28, 31, 47 and 54 in particular. There is no material evidence of any inhuman or cruel treatment, or violation of human dignity which is the core of all human rights, or the right to privacy, or the right to fair administrative action, or the rights of persons with disabilities.
91.In the circumstances I must find and hold that the petition herein has no merit at all, and though it deserved to be dismissed with costs, costs would be an additional burden on the petitioners, the subject of disabilities. However, the costs of air travel by the second respondent’s counsel previously ordered, and of counsel of the second respondent who attended court on taking this judgment, shall be paid by the petitioners. Otherwise each party shall bear its costs.
92.There shall be orders accordingly.
DATED, SIGNED AND DELIVERED IN MOMBASA THIS 27TH DAY OF OCTOBER, 2016.M. J. ANYARA EMUKULE, MBSJUDGE
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Cited documents 15

Act 8
1. Constitution of Kenya Interpreted 30947 citations
2. Evidence Act Interpreted 10415 citations
3. Fair Administrative Action Act Interpreted 2119 citations
4. Kenya Revenue Authority Act Cited 1211 citations
5. Income Tax Act Interpreted 816 citations
6. Kenya Ports Authority Act Interpreted 191 citations
7. Persons with Disabilities Act Interpreted 111 citations
8. Medical Practitioners and Dentists Act Cited 64 citations
Judgment 7
1. Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] KECA 445 (KLR) Explained 370 citations
2. Anarita Karimi Njeru v Republic [1979] KEHC 30 (KLR) Followed 118 citations
3. Jennifer Nyambura Kamau v Humphrey Mbaka Nandi [2013] KECA 423 (KLR) Explained 70 citations
4. ALPHONSE MWANGEMI MUNGA & 10 others v AFRICAN SAFARI CLUB LIMITED [2008] KEHC 1532 (KLR) Explained 5 citations
5. JLN & 2 others v Director of Children Services & 2 others; Kenya National Human Rights Commission & another (Interested Parties) (Petition 78 of 2014) [2014] KEHC 7491 (KLR) (Constitutional and Human Rights) (30 June 2014) (Judgment) Explained 3 citations
6. KENYA PLANTATION AND AGRICULTURAL WORKERS UNION V JAMES FINLAY (K) LIMITED [2013] KEELRC 422 (KLR) Explained 2 citations
7. Charles Onyinge Abuso v Kenya Ports Authority & another [2014] KEELRC 297 (KLR) Explained 1 citation

Documents citing this one 2

Judgment 2
1. HKK v National Council for Persons with Disability & another (Constitutional Petition E008 of 2021) [2023] KEHC 2418 (KLR) (23 March 2023) (Judgment) Explained
2. Macager & 23 others v Kenya Revenue Authority & 4 others (Petition 224 of 2019) [2024] KEHC 10549 (KLR) (Constitutional and Human Rights) (3 September 2024) (Judgment) Explained