[2021] KENCCART 420 (KLR)

REPUBLIC OF KENYA

IN THE NATIONAL CIVIL AVIATION ADMINISTRATIVE REVIEW TRIBUNAL

APPEAL NO. 1 OF 2020

ABDIRAHMAN NURA BARROW..........................APPELANT/APPLICANT

-VERSUS-

KENYA CIVIL AVIATION AUTHORITY.................................RESPONDENT

RULING

1. The Applicant filed an Appeal from a decision by the Respondent to deny the Applicant a Commercial Pilot Licence pursuant to the provisions of regulation 202 (3) of the Civil Aviation (Personnel Licensing) Regulations, 2018.

2. The hearing of the Appeal commenced and the evidence of the Appellant was taken on 11th March 2021. Upon closing his case, the Appellant indicated that he intended to file an application in respect of the evidence to be adduced by the Respondent.

3. The Applicant filed a Notice of Motion Application on 17th March 2021 seeking the following orders:

a) That any evidence touching on the confidential report by the National Intelligence Service (NIS) be expunged from the proceedings and be disregarded by the Tribunal in its final determination;

b) That in the alternative to the first prayer, the respondent be ordered to serve the Appellant through his advocates a copy of the confidential report before the further hearing of the matter;

c) That further to prayer number 2, the respondent be ordered to avail the makers and/or the author of the report at the hearing of the respondent’s case for cross-examination.

d) Costs of the application.

4. The Application is based on the grounds, inter alia, that the Applicant was denied a Commercial Pilot Licence by the Respondent based on a confidential report submitted to the Respondent by the NIS.

5. In his Application, the Applicant cites prejudice if the matter proceeds to a hearing without the Respondent disclosing the contents of the report and denial of the right to cross-examine the maker of the report.

6. The Application is supported by the Affidavit of Mbuthi Gathenji Advocate sworn on 18th March 2021.

7. The Applicant in his affidavit states that the regulation 202(3) of the Civil Aviation (Personnel Licensing) Regulations, 2018 is misconceived and cannot be relied on by the Respondent as the section only addresses ‘Suspension and revocation of documents”.The Applicant avers that one of the section applies on the presumption that a person is already a holder of a licence. The Applicant states that ab initiohe is not a holder of a licence thus the Respondent cannot purport to revoke what is not there.

8. That notwithstanding, the Applicant avers that the suspension or revocation as provided for under the said section should be based on ‘Public Interest’.The Applicant disputes the decision by the Respondent and avers that the Respondent did not provide particulars of the nature of public interest that the Respondent sought to protect.

9. The Applicant cites breach of his rights to access to information and fair administrative action as guaranteed under Articles 35 and 47 of the Constitution of Kenya.

10. The Applicant states that he had no knowledge of the report until the filing of the appeal and is apprehensive that if the matter proceeds to hearing without the disclosure of the contents therein, the Applicant will be prejudiced.

11. The Respondent filed Grounds of Opposition dated 15th April 2021.

12. The Respondent has opposed the application citing prejudice if the prayers as sought by the Applicant are granted. The Respondent stated that the said information is classified and cannot be circulated, recorded, publicized or served upon the Appellant in the usual manner of court process. Further, the Respondent avers that the Applicant stands to suffer no prejudice if the contents of the report are not disclosed as the counsel for the Applicant, as an officer of the court, will have a chance to see the information once tabled in court and confirm the same.

13. It is the Respondents position that individual fundamental rights are subject to the national security considerations in public interest.

14. From the onset, we remind ourselves of the rights and fundamental freedoms guaranteed under Chapter Four of the Constitution of Kenya and their impact on the instant application.

15. We have considered the Application and the issues for determination are:

a. Whether the confidential report by NIS should be expunged from the proceedings and disregarded by the Tribunal in its final determination;

b. Whether the Applicant should be served with a copy of the confidential report before the hearing of the matter;

c. Whether the Respondent should avail the maker/author of the confidential report at the hearing of the Respondent’s case for cross-examination.

a) Whether the confidential report by NIS should be expunged from the proceedings and disregarded by the Tribunal in its final determination

16. On the first prayer, the Tribunal is guided by the following precedents:

“The Court’s Discretion to Exclude Evidence in Civil Case and Emerging Implications in the Criminal Sphere(2016) 28 SAcLJ, Professor Jeffrey Pinsler, SC put it this way: “…the court must try to give effect to two conflicting public interests: the need for the court to have access to the evidence in the interest of fair and just adjudication and the avoidance of misconduct in the manner of securing evidence. The outcome of the balancing operation depends on the circumstances.”

17. In John Muriithi & 8 others v Registered Trustees of Sisters of Mercy (Kenya) t/a “The Mater Misericordiae Hospital” & another [2018] eKLR, at paragraph 30, Hon. Lady Justice Hellen Wasilwa asserted that:

“In determining whether to allow evidence being sought to be expunged, I am guided by the fact that the primary duty of this Court is to do justice. If justice will be done using available documents and evidence not obtained in breach of the Constitution and the law then this Court would admit such evidence in order to have the right resources before it to enable determination of the issues in a just matter…”

18. In George Ochieng Olima v Republic [2019] Eklr Justice Fred A. Ochieng noted at Paragraph 19 that

“…a court may decide to expunge the evidence from the record, if justice so demanded.”

19. In Muslim for Human Rights (Milimani) & 2 Others vs Attorney General & 2 Others (2011) eKLR the court opined as follows: (underlined for emphasis)

“in certain Constitutional interlocutory applications which seek Conservatory Orders then the court may also consider the Balance of Convenience as between the Applicant/Claimant and the Respondent and in particular where it may involve the national and/or public interest. In the BANSRAJcase which involved extradition proceedings of the claimant to the U.S.A. from Trinidad and Tobago under an International Extradition Treaty between the two countries, the Judge observed that:-

“……………………………………………………………The Constitutional court must hold the scales of justice evenly between the claimants and the state. There are competing and powerful interests at stake in this case. The right of the claimants to their liberty and the freedom of movement on the one hand and on the other the public interest in the prosecution of the crime, the comity of the nations, attendant obligations under International treaties with foreign nations.………………………………………………………………

This court must therefore be astute to balance these competing interests in the interim while it deals with the substantial complaint of the Claimants”.

It is therefore necessary that in certain cases if not all, the court may have to assess and determine in whose favour the balance of convenience tilts or what directives or decisions the balance of convenience in fact demands.

In an application for interim orders of the nature of Conservatory Orders or even one for an injunction, the court is not hearing and/or being called upon to determine the main Petition. The Constitutional court is being called upon to preserve the status quo pending the hearing of the Constitutional Petition or motion. The court does not have to take and hear all the evidence and delve into the entire case on its merits. The hearing of the Petition and determination of all issues and questions in dispute will be done at the “trial” and upon completion thereof when a final judgment is to be delivered. As a result, at this stage I am not obligated to go into all the evidence and even consideration of all the matters of law. My function is to have a reasonable overview to enable me decide on the criteria or principles applicable when considering an application for a Conservatory Order and to what extent and principles are applicable to the facts and circumstances of this case.

There must be no conclusivity or finality arising that will or may operate adversely vis-a vis the case of either parties. The principle is similar to that in temporary or interlocutory injunctive in civil matters. This is a cardinal principle and happily makes my functions and work here much easier despite walking a tight legal rope that I could easily lose balance with the slightest slip due to any laxity or being carried away by the passion or zeal of persuasion of any one side.

20. The Tribunal notes that in the event that the report is expunged from hearing, it may not only be prejudicial to the Respondent, but it may also negatively impact on the concept of fair hearing as espoused under Article 50 of the Constitution of Kenya.

21. Secondly, the issue being one of security, there is a need to balance the right of the Applicant to fair a hearing and the right of the respondent to tender in the evidence for which they made their decision.

22. Based on the above, the Tribunal denies the first prayer. Disregarding the report at this early stage will prejudice the Respondent as they will not be in a position to effectively and efficiently present their case as their decision was informed by the contents of the report. The Tribunal, and indeed the Appellant, will have the opportunity to assess the evidence contained in the said report. It is important for the ends of justice to be met that all evidence be availed.

b) Whether the Applicant should be served with a copy of the confidential report before the hearing of the matter

23. On the second Prayer, the Tribunal is guided by the court’s determination in Republic v Cabinet Secretary, Ministry of Interior and Co-ordination National Government & others Ex- parte Paresh Kamlakar Naik & another [2018] eKLRwhere the court while dismissing the application for access to a security report quoted the provisions of Section 6 of the Access to Information Act and laying emphasis on the underlined provisions as follows:

“It is not disputed that the first applicant in the exercise of due diligence while processing first applicant’s application sought security information from the relevant state organ and an unfavourable report was filed which influenced its decision. Section 4 of the Access to Information Act provides that Access to information held by a public entity or a private body shall be provided expeditiously at a reasonable cost. More important is the wording of subsection (4) which provides that the Act shall be interpreted and applied on the basis of a duty to disclose and non-disclosure shall be permitted only in circumstances exempted under section 6 which provides that: - Limitation of right of access to information

(1) Pursuant to Article24of 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.

(2) For purposes of subsection (1)(a), information relating to national security includes—

(a) military strategy, covert operations, doctrine, capability, capacity or deployment;

(b) foreign government information with implications on national security;

(c) intelligence activities, sources, capabilities, methods or cryptology;

(d) foreign relations;

(e) scientific, technology or economic matters relating to national security;

(f) vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans or protection services relating to national security;

(g)information obtained or prepared by any government institution that is an investigative body in the course of lawful investigations relating to the detection, prevention or suppression of crime, enforcement of any law and activities suspected of constituting threats to national security;

(h) information between the national and county governments deemed to be injurious to the conduct of affairs of the two levels of government;

(i) cabinet deliberations and records;

(j) information that should be provided to a State organ, independent office or a constitutional commission when conducting investigations, examinations, audits or reviews in the performance of its functions;

(k)information that is referred to as classified information in the Kenya Defence Forces Act; and

(l)any other information whose unauthorized disclosure would prejudice national security.

(3) Subsection (1)(d) and (e) shall not apply if a request for information relates to the results of any product or environmental testing, and the information concerned reveals a serious public safety or environmental risk.

(4) Despite anything contained in subsections (1) and (2), a public entity or private body may be required to disclose information where the public interest in disclosure outweighs the harm to protected interests as shall be determined by a Court.

(5) A public entity is not obliged to supply information to a requester if that information is reasonably accessible by other means.

(6) In considering the public interest referred in subsection (4), particular regard shall be had to the constitutional principles on the need to—

(a) promote accountability of public entities to the public;

(b) ensure that the expenditure of public funds is subject to effective oversight;

(c) promote informed debate on issues of public interest;

(d) keep the public adequately informed about the existence of any danger to public health or safety or to the environment; and

(e) ensure that any statutory authority with regulatory responsibilities is adequately discharging its functions.

(7) Unless the contrary is proved by the public entity or private body, information is presumed not to be exempt if the information has been held for a period exceeding thirty years.

I need not elaborate the above sections. The information sought to be released falls under the exceptions under Section 6reproduced above, particularly paragraphs 6(1)(a), (e),(g),(k)&(l).

24. The Tribunal is guided by the determination above and the second prayer therefore fails.

c) Whether the Respondent should avail the maker/author of the confidential report at the hearing of the Respondent’s case for cross-examination

25. The Third Prayer seeks to compel the Respondent to avail the maker and or author of the confidential report.

26. We note that the Respondent claims that it has no authority to compel the maker of the report to appear in court to be cross-examined by the Applicant on the contents of the report.

27. The Tribunal is guided by the provisions of sections 37 and 63 of the National Intelligence Service Act, No. 28 of 2012 which provides:

37. Limitation of the right to access of information

(1) The Right to access to information set out in Article 35(1) and (3) of the Constitution may be limited in respect of classified information or information under the custody of the service under the circumstances set out under subsection (2).

(2) Subject to subsection (1) the Service shall not—

(a) comply with a request to furnish a person with classified information;

(b) disclose or publicize information relating to sources of information,

intelligence collection methods and covert operations of the Service;

or

(c) disclose or publicize information, the disclosure or publication of which would be prejudicial to national security.

28. Section 63 prohibits any person who is a member of the Service from disclosing or communicating classified information or any information, disclosure of which is detrimental to National Security.

29. The Tribunal takes the position that it is the Respondent to decide how it intends to adduce its evidence. Based on what is stated above, this Tribunal will not order for the maker or author of the report. It is important to note, however, that it is still incumbent on this Tribunal to assess the veracity of the evidence adduced before it, and give it the respective weight.

30. In the above circumstances and the foregoing analysis, the prayers in the Notice of Motion cannot be granted as prayed.

Conclusion

31. It is noteworthy that section 31(2) of the National Intelligence Service Act expressly provides that limitations under the Act should not derogate from the rights and fundamental freedoms in article 25 of the Constitution. Among these rights is the right to a fair trial.

32. To safeguard the right of the Appellant to a fair hearing, the Tribunal directs as follows:

a. That upon resumption of physical court hearings, this matter be fixed for the hearing of the Respondent’s case. The said hearing shall be in camera.

b. On that day of hearing, the Respondent shall adduce its evidence.

c. The Appellant shall have a right to cross-examine the witness tendering the Respondent’s evidence, either on that date or at a future date that the Tribunal may allow.

33. For the reasons given above, the motion is partly merited and as such, each party to bear their own costs.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 17TH DAY OF MAY, 2021

Dr Njaramba Gichuki - Chairpersson …………………………

Alice Owuor - Vice Chairperson …………………………

Col (Rtd) Eutychus Waithaka - Member ………………………….

Kuria Waithaka - Member ………………………….