[2017] KEHC 940 (KLR)
The court held that the Occurrence Book (OB) entry in question is a public document and that, under Article 35 of the Constitution, the petitioners are entitled to access information held by the state if it is relevant to their case. The court found that the OB entry was referenced in the P3 forms and medical...
Source-derived case information.
- Citation
- [2017] KEHC 940 (KLR)
- Parties
- Applicant: Adan Mohammed; Applicant: Abdulle Sahara Maow; Applicant: Dubane Samow; Applicant: Salan Hashim; Applicant: Hussein Sheikh Mohammed; Respondent: The Hon. Attorney General; Respondent: The Cabinet Secretary Ministry of Defence; Respondent: The Director of Public Prosecutions
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Petition 1 of 2017
- Procedural Posture
- Constitutional Petition / Ruling on Interlocutory Application for Access to Information
- Outcome
- application allowed
- Judges
- GMA Dulu
- Legal Topics
- Access to Information, Public Documents, Right to Fair Trial
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Adan Mohammed
Applicant
Abdulle Sahara Maow
Applicant
Dubane Samow
Applicant
Salan Hashim
Applicant
Hussein Sheikh Mohammed
Applicant
The Hon. Attorney General
Respondent
The Cabinet Secretary Ministry of Defence
Respondent
The Director of Public Prosecutions
Respondent
Procedural Posture
Constitutional Petition / Ruling on Interlocutory Application for Access to Information
Legal Issues
- 1 Whether the petitioners are entitled to access a certified copy of the Occurrence Book (OB) entry relevant to their case under Article 35 of the Constitution.
- 2 Whether the absence of the Inspector General of Police as a party precludes the granting of the order for access to the OB entry.
Ratio Decidendi
The court held that the Occurrence Book (OB) entry in question is a public document and that, under Article 35 of the Constitution, the petitioners are entitled to access information held by the state if it is relevant to their case. The court found that the OB entry was referenced in the P3 forms and medical documents already on record, establishing its relevance. The absence of the Inspector General of Police as a party did not preclude the granting of the order, as the right to access information is not dependent on the joinder of a specific state officer. The court therefore allowed the application, subject to payment of any lawful copying charges.
Court Disposition
application allowed
Orders
- The Officer Commanding Police Station (Mandera) is to avail a certified copy of the Occurrence Book (OB) Report No. 29/28/12/2015 to the petitioners.
- If there are any lawful copying charges applicable, the petitioners shall pay the same.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT GARISSA
PETITION NO. 1 OF 2017
ADAN MOHAMMED.......................................................................1ST PETITIONER
ABDULLE SAHARA MAOW...........................................................2ND PETITIONER
DUBANE SAMOW...........................................................................3RD PETITIONER
SALAN HASHIM..............................................................................4TH PETITIONER
HUSSEIN SHEIKH MOHAMMED................................................5TH PETITIONER
VERSUS
THE HON. ATTORNEY GENERAL.............................................1ST RESPONDENT
THE CABINET SECRETARY MINISTRY OF DEFENCE........2ND RESPONDENT
THE DIRECTOR OF PUBLIC PROSECUTIONS......................3RD RESPONDENT
RULING
1. This is a Notice of Motion dated 8th November 2017 filed by Gichuki Karuga Advocate for the petitioners. The application was brought under Article 35 (1) of the Constitution of Kenya 2010 and was filed under Certificate of Urgency. It has three prayers, one of which has been spent as follows:
1. ……..(spent)
2. That this court be pleased to issue an order to the Officer Commanding Police Station (Mandera) to avail a certified copy of the Occurrence Book (OB)Report No. 29/28/12/2015.
3. That the costs be in the cause.
2. The application has grounds on the face of Notice of Motion, which are that the certified copy of the OB entry in question was crucial to the parties to these proceedings, and that the interests of justice would be served if the orders sought were granted.
3. The application was also filed with a supporting affidavit sworn on the 8th of November 2017 by Gichuki Karuga Advocate, who deponed that the P3 Form reports and other medical documents filed herein contained several references to the said OB entry, but the petitioners lacked an actual copy of the same, whose sole custody was with OCS Mandera Police Station.
4. Though the application was served and an affidavit of service dated 14th November, 2017 was filed, no response was filed by the respondents.
5. When the application came up for hearing on 14th November, 2017 Mr. Nyaga held brief for Mr. Gichuki Karuga for the petitioners while Mr. Okemwa was present for the DPP, the 3rd respondent. Mr. Okemwa informed the court that the Attorney General was not present in court and that the party required to comply ( the OCS Mandera Police Station) was not a party in the proceedings. In response, Mr. Nyaga submitted that as the Attorney General had been served, it was not necessary for the National Police Service to be made a party in the application, and asked the court to grant the orders sought.
6. I have considered the application and perused the main petition herein. In the petition dated 10th January, 2017 the 3rd respondent is named as Director of Public Prosecutions. However, under paragraph 5 of the petition the 3rd respondent is described as the Head of The National Police Service, which seems to suggest that the 3rd respondent was meant to be the Inspector General of the Police. In my view, the Inspector General of Police should have been a party instead of the Director of Public Prosecutions (DPP).
7. Having said so, in my view the OB (Occurrence Book) held in any police station is a public document. The information therein can be provided to any interested party in court proceedings, provided the same is relevant to the proceedings. In accordance with the provisions of Article 35 of the Constitution of Kenya 2010 on access to information, though the Inspector General of the Kenya Police Service is not a party to these proceedings, the petitioners cannot be denied the right to access that information provided it is relevant to their case. I have perused the P3 forms filed in this case and the said OB entry No. 29/28/12/2015 appears therein. As such, it cannot be said that the information is irrelevant. It is my view that the information in the said OB entry is relevant in these proceedings.
8. I will thus allow the application. However, if there are any applicable copying charges to be paid, the applicants or petitioners will pay the same.
9. Consequently, I allow the application and grant prayer 2 and 3. If there are any lawful copying charges applicable, the petitioners will pay the same.
Dated and delivered at Garissa on 6th December, 2017.
George Dulu
JUDGE