Kenya Law Weekly Issue 012/22-23

Relevant provisions of the law
Access to Information Act, 2016
Section 6 - Limitation of right of access to information
(1)Pursuant to Article 24 of the Constitution, the right of access to information under Article 35 of the Constitution shall be limited in respect of information whose disclosure is likely to—

(a)undermine the national security of Kenya;
(b)impede the due process of law;
(c)endanger the safety, health or life of any person;
(d)involve the unwarranted invasion of the privacy of an individual, other than the applicant or the person on whose behalf an application has, with proper authority, been made;
(e)substantially prejudice the commercial interests, including intellectual property rights, of that entity or third party from whom information was obtained;
(f)cause substantial harm to the ability of the Government to manage the economy of Kenya;
(g)significantly undermine a public or private entity's ability to give adequate and judicious consideration to a matter concerning which no final decision has been taken and which remains the subject of active consideration;
(h)damage a public entity's position in any actual or contemplated legal proceedings; or
(i)infringe professional confidentiality as recognized in law or by the rules of a registered association of a profession

Public Procurement and Asset Disposal, 2015
Section 67- Confidentiality
(1) During or after procurement proceedings and subject to subsection (3), no procuring entity and no employee or agent of the procuring entity or member of a board, commission or committee of the procuring entity shall disclose the following —

(a)information relating to a procurement whose disclosure would impede law enforcement or whose disclosure would not be in the public interest;
(b)information relating to a procurement whose disclosure would prejudice legitimate commercial interests, intellectual property rights or inhibit fair competition;
(c)information relating to the evaluation, comparison or clarification of tenders, proposals or quotations; or
(d)the contents of tenders, proposals or quotations.

(2) For the purposes of subsection (1) an employee or agent or member of a board, commission or committee of the procuring entity shall sign a confidentiality declaration form as prescribed.
(3) This section does not prevent the disclosure of information if any of the following apply—

(a)the disclosure is to an authorized employee or agent of the procuring entity or a member of a board or committee of the procuring entity involved in the procurement proceedings;
(b)the disclosure is for the purpose of law enforcement;
(c)the disclosure is for the purpose of a review under Part XV or requirements under Part IV of this Act;
(d)the disclosure is pursuant to a court order; or
(e) the disclosure is made to the Authority or Review Board under this Act.

(4) Notwithstanding the provisions of subsection (3), the disclosure to an applicant seeking a review under Part XV shall constitute only the summary referred to in section 68 (2)(d)(iii).
(5) Any person who contravenes the provisions of this section commits an offence as stipulated in section 176(1)(f) and shall be debarred and prohibited to work for a government entity or where the government holds shares, for a period of ten years.

Held:

1. The petitioners had not demonstrated that the request for information was ever made to the respondents. A litigant inviting the court to find that a respondent had failed to supply information sought under article 35 of the Constitution of Kenya, 2010 (Constitution) had to prove that the request for information was made and that despite the request, the respondent had failed, refused or declined to supply the information. That test had not been met in the instant case.
2. Request for information was provided under section 8 of the Act. The petitioners’ letter was dated December 15, 2021 and the petition was filed on January 31, 2022. In terms of section 9(1) of the Act, the respondents were supposed to decide whether to grant or refuse the request within a reasonable time but in any event within 21 days after receiving the request. The requester had to be notified of the outcome and the next step that he or she could take.
3. If the public officer failed to give a decision on a proper request within 21 days, and no extension had been sought, the public officer was, for the purposes of the Act, regarded as having refused the request as provided under section 9(6). The word “deemed” used in section 9(6) was sometimes used in a statute in order to create a legal fiction. Often it was used in order to extend the denotation of a word or term to a thing or situation it would not in ordinary parlance denote.
4. If at all the request was made vide the improperly addressed letter (which was disputed), then the petitioners did not exhaust the mechanism provided under section 22 of the Act. At common law, the existence of internal remedies was not a bar to approach a court for appropriate relief after an administrative decision had been taken.
5. When a statute expressly stated that the exhaustion of internal remedies was an indispensable condition precedent before launching an application to a court then that condition had to first be fulfilled. Section 14 of the Act provided for review of a decision. The word deployed in section 14(1) was “may” which was not mandatory. However, there was nothing before the court to show that the petitioner made any effort to invoke the said procedure. In any event, the grant or refusal to provide the information was an administrative action within the meaning of section 2 of the Fair Administrative Action Act (the FAA Act).
6. Section 9(2) of the FAA Act provided that the High Court or a subordinate court under subsection (1) should not review an administrative action or decision under that Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law were first exhausted.
7. The word "shall" when used in a statutory provision imported a form of command or mandate. It was not permissive, it was mandatory. The word “shall” in its ordinary meaning was a word of command which was normally given a compulsory meaning as it was intended to denote obligation. A proper construction of sections 9(2) and (3) of the FAA Act led to the conclusion that they were couched in mandatory terms. The only way out was the exception provided by section 9(4). Two requirements flowed from section 9(4);
   1. the applicant had to demonstrate exceptional circumstances. No exceptional circumstances were alluded to or proved in the instant case.
   2. On application by the applicant, the court could exempt the person from the obligation. The person seeking exemption had to satisfy the court that there were exceptional circumstances and that it was in the interest of justice that the exemption be given.
   Section 9(4) postulated an application to the court by the aggrieved party for exemption from the obligation to exhaust any internal remedy. No such application for exemption was made to the court.
8. The petitioners ought to have exhausted the mechanism provided under the Access to Information Act before approaching the court. The petition offended the doctrine of exhaustion of remedies.
9. The right of access to information held by the State was guaranteed by article 35(1) of the Constitution. The Access to Information Act enacted to give effect to article 35 provided a framework for public entities and private bodies to proactively disclose information that they held and to provide information on request in line with the constitutional principles. Section 4 of the Act provided that access to information held by a public entity or a private body would be provided expeditiously at a reasonable cost. The wording of section 4(4) which provided that the Act would be interpreted and applied on the basis of a duty to disclose and non-disclosure would be permitted only in circumstances exempted under section 6 of the Act.
10. A reading of section 6 of the Act revealed that there were reasonable and justifiable limitations on the right of access to information. However, the burden of establishing that the refusal of access to information was justified rested on the State or any other party refusing access. In order to discharge its burden under section 6, the State had to provide evidence that the record in question fell within the description of the statutory exemption it sought to claim. The proper approach to the question whether the State had discharged its burden under section 6 was therefore to ask whether the State had put forward sufficient evidence for a court to conclude that, on the probabilities, the information withheld fell within the exemptions claimed.
11. The documents (information) sought related to a public procurement process. Article 277(1) of the Constitution provided that when a State organ or any other public entity contracted for goods or services, it should do so in accordance with a system that was fair, equitable, transparent, competitive and cost-effective. The national legislation prescribing the framework within which procurement policy had to be implemented was the PPAD Act and the Public Procurement and Disposal Regulations, 2006.
12. Section 67 of the PPAD Act contained a confidentiality clause. Section 67 in peremptory terms prohibited disclosure during or after procurement proceedings of the following information, namely;
    1. information relating to a procurement whose disclosure would impede law enforcement or whose disclosure would not be in the public interest;
    2. information relating to a procurement whose disclosure would prejudice legitimate commercial interests, intellectual property rights or inhibit fair competition;
    3. information relating to the evaluation, comparison or clarification of tenders, proposals or quotations; or
    4. the contents of tenders, proposals or quotations.
13. Disclosure would be refused if releasing the information would cause harm to the commercial or financial interests of the business of the public entity or a third party. Such interests included trade secrets of the business or a third party; financial, commercial, scientific or technical information of the business or a third party which, if disclosed, was likely to cause harm to the commercial or financial interest(s) of the body or third party; or information supplied in confidence by a third party and where disclosure of such information could reasonably be expected to put the business at a disadvantage in contractual or other negotiations, or prejudice the business in commercial competitions.
14. The only exemption permitted under section 67 of the PPAD was if the information sought related to the information listed in section 67(3) and section 6(1)(e) of the Access to Information Act. The petitioners’ advocates argument that sections 67 and 6(1)(e) could not oust the right to information under article 35 of the Constitution was legally frail. It ignored the fact that article 35 right was not absolute. It could be limited by law provided that the law passed an article 24 of the Constitution analysis test.
15. The reason given had to not only be lawful, that was, they should fall within the statutory exemptions, but the reason(s) had to meet the article 24 of the Constitution analysis test in that it had to be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors.
16. A common way of determining whether a law or a regulation or decision that limited rights was justified was by asking whether the law was proportionate. The test of proportionality had been established to the following: -
    1. whether the legislation (or other Government action) establishing the right’s limitation pursued a legitimate objective of sufficient importance to warrant limiting a right;
    2. whether the means in service of the objective rationally connected (suitable) to the objective;
    3. whether the means in service of the objective were necessary, that was, minimally impairing of the limited right, taking into account alternative means of achieving the same objective;
    4. whether the beneficial effects of the limitation on the right outweighed the deleterious effects of the limitation in short, whether there was a fair balance between the public interest and the private right.
17. A reading of sections 6(3) of the Access to Information Act and section 67(3) of the PPAD Act showed that any request for access to information would be refused to protect the commercial records of a third party in terms of an agreement. The information could be refused on the following grounds: -
    1. trade secrets of the business or a third party;
    2. financial, commercial, scientific or technical information of the business or a third party which, if disclosed, was likely to cause harm to the commercial or financial interest(s) of the body or third party; or
    3. information supplied in confidence by a third party and where disclosure of such information could reasonably be expected to put the business at a disadvantage in contractual or other negotiations, or prejudice the business in commercial competitions;
    4. protecting confidential information in terms of an agreement; and
    5. if disclosure would amount to breach of a duty of confidence owed to a third party in terms of an agreement or contract.
18. From a reading of the list of the documents/information sought by the petitioners, the requested information fell squarely within the ambit contemplated by section 6(3) of the Access to Information Act and section 67(3) of the PPAD Act. Releasing that information would be a clear breach of sections 6(3) and 67(3).

Petition dismissed.
Orders
No orders as to costs.

Held:

1. Jurisdiction of the Kadhi’s court was conferred by article 170(5) of the Constitution of Kenya (2010) to determine questions of Muslim law on personal status, marriage, divorce or inheritance between parties professing the Muslim faith and who had submitted to its jurisdiction. For the Kadhi’s Court to exercise its jurisdiction the parties must all be muslims, the subject matter within the four listed issues and the all the parties needed to submit to its jurisdiction.
2. Section 3 of the Marriage Act (the Act) recognized Muslim marriages and gave them the same legal status as the other marriages registered under the Act. It further provided that dissolution of a marriage celebrated under Muslim law shall be governed by the Islamic law.
3. Celebration of a marriage under Islamic law meant submission to its jurisdiction in the event of its dissolution. The marriage between the parties having been celebrated in Kenya under Islamic law and registered under the Marriage Act, 2014, meant that the court had requisite jurisdiction to handle and determine it.
4. The right to fair trial was protected by the Constitution of Kenya, (2010) under article 50(1) and under Islamic law and traditions. It was founded on Q.38.24 and the prophet's direction to Ali ibn Abu Talib when he appointed him the judge of Yemen. It was a fundamental right and key concept of rules of natural justice
5. The applicant deposed that she had not been served with the court papers. However, the respondent had filed an email to prove he had served her with the divorce notice. There was however no proof she had been served with the hearing of the matter. There was no proof she had been supplied with the court’s link for virtual court proceedings. The matter was filed on January 4, 2021 and proceeded to hearing on January 6, 2021. There was no proper or adequate service upon the applicant. Her right to fair trial was infringed. The judgment was irregular. The court as a matter of right set aside the irregular judgment.
6. The husband had original powers to effect divorce upon his wife. Once pronounced and or written it became effective. However, the same had to be communicated to the divorced wife who had some inherent rights after divorce. It was the court’s duty to ensure those rights were protected and satisfied. Divorce registration was only filed on the presumption that the informal divorce issued by the husband was not contested by the divorced wife. Both parties appended their signatures to the application for registration of the divorce, otherwise, the husband had to either to file a petition or miscellaneous cause for confirmation of the divorce. In either case the divorced wife would be served with the petition or miscellaneous cause.
7. In the instant case, the applicant did not append her signature on the application for registration of divorce or consent thereto. The application was incurably defective. The issue of the couple having continued to cohabit even after issuance of the divorce decree was not before court for consideration but would, if found as fact, vitiate the divorce.

The suit was struck out.
Orders
Each party was to bear its own costs.

Held :

1. Kadhi’s courts in Kenya were established under the Constitution 2010. Article 170(5) conferred the Kadhi’s Court with jurisdiction to determine questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all parties professed the Muslim religion and submitted to the jurisdiction of the Kadhi’s courts.
2. A valid marriage under Islamic law had to fulfil five key requirements: consent of bride and her waliy, husband and wife free from legal impediments, offer and acceptance, witnesses and dowry.
3. Strictly under Islamic law, the presence of the bride, though highly encouraged, was not a requirement to the validity of a marriage provided her consent had been authenticated. The waliy or guardian had the original locus standi to solemnize the marriage of his daughter, granddaughter or niece as the case may be. He may however, delegate that power to a Sheikh, Muslim Marriage officer or Kadhi. Section 240 of the Kadhi’s Court Bench Book (2020) provided that the guardian had the authority to solemnize the marriage. However, he may delegate the same to a Kadhi or a Muslim Marriage officer to officiate the marriage ceremony.
4. A marriage in the presence of the groom, bride’s guardian and witnesses, but in the absence of the bride satisfied all the requirements of a valid marriage under Islamic law provided the bride gave her free consent. The presence of the groom was however, mandatory for validity of a Muslim marriage but his presence could be expendable with his appointment of an attorney or proxy to represent him at the marriage ceremony.
5. Islamic law allowed representation in transactions generally and in marriage contracts specifically.
6. One of the key strategies adopted by the judiciary to enhance access to justice was the harnessing technology solutions. Those included but were not limited to e-filing and virtual courts. Alternative to proxy marriage through, the husband may also participate in the marriage virtually through video platforms. Marriage so celebrated was also deemed to have satisfied the requirements of Islamic laws of marriage. Marriage through proxy were valid and legal under Islamic law.

Advisory opinion issued.