Attorney General v Khalifa & 3 others (Civil Appeal E085 of 2022) [2026] KECA 913 (KLR) (15 May 2026) (Judgment)

Attorney General v Khalifa & 3 others (Civil Appeal E085 of 2022) [2026] KECA 913 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KECA 913 (KLR) Republic of Kenya In the Court of Appeal at Mombasa Civil Appeal E085 of 2022 AK Murgor, KI Laibuta & GW Ngenye-Macharia, JJA May 15, 2026 Between Attorney General Appellant and Khelef Khalifa 1st Respondent Wanjiru Gikonyo 2nd Respondent Katiba Institute 3rd Respondent The Commission on Administrative Justice 4th Respondent Judgment 1.The instant appeal arises from the judgment of the High Court of Kenya at Mombasa (J. M. Mativo, J.) (as he then was) dated 13th May 2022 in Mombasa HC Constitutional Petition No. E032 of 2021. The Petition dated 21st June 2021 was filed by the 1st and 2nd respondents herein (Khelef Khalifa and Wanjiru Gikonyo) against the Principal Secretary Ministry of Transport, the Principal Secretary National Treasury & Planning, the Attorney General (the appellant herein) and the officeholders of the aforesaid Principal Secretary positions, namely Solomon Kitungu and Dr. Julius Muia respectively. The 3rd and 4th respondents (Katiba Institute and The Commission on Administrative Justice) were subsequently joined as interested parties. 2.The respondents’ petition, which challenged the refusal by State officials to disclose information relating to the financing, procurement, construction, operation and management of the Standard Gauge Railway (SGR), was supported by their respective affidavits sworn on 21st June 2021. 3.The 1st and 2nd respondents’ petition was premised on the fact that the SGR was the most capital-intensive infrastructure project ever developed in Kenya, costing taxpayers in excess of USD 4.5 Billion, largely financed through concessional and commercial loans from the China Exim Bank; that, despite this extraordinary expenditure of public funds, the SGR project had been undertaken amid controversy and secrecy right from its inception; and that, to date, key agreements and documents concerning the project’s financing, procurement, construction, environmental and social impacts, as well as operational arrangements, remained concealed and had never been disclosed to the public. 4.The 1st and 2nd respondents averred that, in Civil Appeal No. 13 of 2015, the Court of Appeal affirmed that the SGR project was procured in violation of Article 227(1) of the Constitution and sections 6(1) and 29 of the Public Procurement and Disposal Act, 2005; and that, in Petitions No. 159 of 2018 & 201 of 2019 (Consolidated), the High Court found that no public participation had been conducted with respect to the SGR Take or Pay Agreement between Kenya Railways Corporation and Kenya Ports Authority and, consequently, held that the directives emanating from this agreement were constitutionally infirm and in violation of Article 47 of the Constitution. 5.The respondents asserted that the SGR was operated by a private company known as Africa Star Railway Operation Company Limited, which was being paid in excess of Kshs. 1 billion per month on account of operation costs; that, according to government statistics, the SGR had been operating at a loss; that related loan repayments were being met from public funds; and that the public remained unaware of the consequences of any default under the loan agreements between Kenya and China. 6.The 1st and 2nd respondents further averred that they were concerned by the lack of public participation and the insufficiency of information available to the public; that, consequently, the 1st respondent wrote to the sued State Offices and officials vide letters dated 16th December 2019 and 13th May 2021 requesting extensive information and documentation relating to the SGR; and that the information sought was specifically enumerated in the 1st respondent’s letters as follows:“1.Agreements entered between the government of Kenya (GOK) or any Kenyan State or public agency with all service providers and or third parties (including foreign government/state) in regard to the Standard Gauge Railway (SGR), including:a.All contracts for the carrying out of feasibility studies related to the construction, operation and servicing of the SGR;b.Any and all documents relating to the expression of interest for the financing, construction, management, operation and servicing of SGR prepared by GOK or state/public agency or a third party on behalf of the GOK;c.Contracts and Memorandum of Understanding (MOU) between GOK and any third party relating to the financing, construction, management, provision of operation stock, operation and maintenance/servicing of SGR;d.All agreements and contracts entered into including loan agreements, concession agreements, guarantees and/or collateral for financing, construction, management, operation and maintenance/servicing of the SGR.e.Any concessions, agreements and or MOU relating to the operation of the SGR including:1.Take or Pay Agreement between Kenya Railways and Kenya Ports Authority.2.Agreement with Africa Star Railway Operation Company Ltd.2.All documents considering (sic) relating to the viability, economic, social, cultural and environmental impacts, including:a.Feasibility studiesb.Strategic Environmental Assessmentc.Environmental Social Impact Assessmentd.Cultural Heritage Assessment3.Memorandum of Understanding between Government of Kenya or a State/Public Agency and Kenya National Shipping Line, Mediterranean Shipping Company or any of its subsidiaries or affiliates, or any other private entity relating to the management and/or operation of Container Terminal 2 (CT2) Port of Mombasa, including all annexures and associated documents.4.(sic) Statistics around cargo handling at the Port of Mombasa (ICD Mombasa, Dry Port Naivasha etc.), including but not limited to the amount of cargo handled at the Port, Port storage capacity, amount of cargo loaded on SGR, SGR cargo capacity, number of trains per day.5.(sic) Details of registration of Africa Star Railway Operation Company Ltd including but not limited to:1.Particulars of registration,2.Details of all shareholders3.Proportion of shareholding for each shareholder.” 7.The 1st and 2nd respondents contended that the sued State Offices and officials had not complied with the requests, and had failed to cite a valid exception for declining to produce the requested documents or to provide any lawful justification for the non- disclosure, thereby acting in violation of Articles 35 and 47 of the Constitution; and that the sued State Offices and officials had consequently violated Articles 10, 35 and 47 of the Constitution, the principles of public finance management under Article 201, as well as their statutory obligations under the Access to Information Act, the Leadership and Integrity Act and the Public Officers Ethics Act. Accordingly, the 1st and 2nd respondents sought the following orders:“a.That a Declaration be issued that the failure by the Respondents to provide information sought under Article 35(1)(a) and also to publicise the information in accordance with Article 35(3) on the basis of the 1st Petitioner’s request dated December 16, 2019 is a violation of the right to access to information.b.That a Declaration be issued that the failure by the Respondents to provide information sought under Article 35(1)(a) and also to publicise the information in accordance with Article 35(3) on the basis of the 1st Petitioner’s request dated December 16, 2019 is a violation of Article 10 of the Constitution and specifically the values of the rule of law, participation of the people, human rights, good governance, transparency and accountability.c.That a Declaration be issued that the failure by the Respondents to provide information sought under Article 35(1)(a) and also to publicise the information in accordance with Article 35(3) is a violation of the obligations imposed on the said Respondents by Chapter Six specifically Articles 73(1) and 75(1) of the Constitution and Section 3 of the Leadership and Integrity Act and Sections 8, 9 and 10 of the Public Officers Ethics Act.d.That a declaration be issued that the failure by the Respondents to provide information sought under Article 35(1)(a) and also to publicise the information in accordance with Article 35(3) on the basis of the 1st Petitioner’s request is a violation of the principles of openness and accountability of public finance management, and impedes the ability of the petitioners and Kenyans to participate in financial matters as envisioned by Article 201 of the Constitution.e.That an Order be issued compelling the Respondents to forthwith provide, at the Respondents’ cost, information sought by the 1st Petitioner in his letters to the Respondents dated December 16, 2019 and May 13, 2021.f.That an Order do issue that the 4th and 5th Respondents to pay compensation to the Petitioner for violation of his right of access to information under Article 35 of the Constitution.g.That Order do issue to the Respondents to report to court on the status of compliance within a stipulated time period.h.Costs of the Petition.i.That this Honourable Court be pleased to grant such further Order or Orders as may be just and appropriate.” 8.The appellant (the Attorney General) entered appearance for and on behalf of the sued State Offices and officials, and filed Grounds of Opposition dated 11th August 2021. The appellant contended that the petition was incurably defective with no factual basis for lack of documentation supporting the petition; that the 1st and 2nd respondents had not produced before the court a request for information in the form of a letter, thereby rendering the petition frivolous, vexatious and an abuse of court process; that the 1st and 2nd respondents had not exhausted all the available means of dispute resolution available in the matter and that, therefore, the matter was not properly before the court; and that the petition was defective for suing Solomon Kitungu and Dr. Julius Muia in their personal capacities, contrary to section 22 of the National Government and Coordination Act, which provides that a public officer shall not be personally liable for anything done in good faith for the purpose of executing the functions of the office. On those grounds, the appellant urged the court to dismiss the petition. 9.In reply to the Grounds of Opposition filed by the appellant, the 1st respondent swore a further affidavit on 7th October 2021 deponing that there was no requirement to exhaust an internal means of dispute resolution before seeking the court’s intervention for the infringement of their right to information, or to enforce any Constitutional provisions; that the annexures to his supporting affidavit contained detailed information in support of the petition; and that section 22 of the National Government and Coordination Act only exempts a public officer from personal liability for actions done in good faith. According to the deponent, Solomon Kitungu and Dr. Julius Muia, as the respective information officers for their State departments, were not acting in good faith in refusing to respond to his request for information. 10.Subsequently, the appellant filed a replying affidavit sworn on 22nd December 2021 by Dr. (Eng.) Joseph Njoroge CBS, the Principal Secretary State Department for Transport. Dr. (Eng.) Joseph Njoroge deponed that the petition was res judicata as the same issues were determined in Constitutional Petition No. 159 of 2018 – William Ramogi & others v Ministry of Transport & others & MUHURI – in which the Principal Secretary Ministry of Transport and the Principal Secretary National Treasury & Planning were parties; that the 1st respondent participated in the proceedings therein as an interested party; and that the documents and agreements relating to the SGR were the subject matter of the suit and were subsequently produced as evidence before the trial court. 11.Dr. (Eng.) Joseph Njoroge maintained that, in that earlier litigation, the 1st respondent had annexed feasibility and procurement documents while Kenya Railways Corporation produced the Environmental Impact Assessment reports; and that the court determined the issues relating to public participation, the socio-economic impact of the SGR, and the constitutionality of the impugned agreements. 12.On the question as to the alleged secrecy, Dr. (Eng.) Joseph Njoroge deponed that the rationale for the SGR financing had been disclosed in the earlier proceedings, including the sovereign loan obtained from the China Exim Bank and the role of the Take or Pay Agreement in supporting loan repayments and project administration, which the court accepted as serving a legitimate governmental objective of promoting socio-economic development. 13.The deponent further averred that the State Offices had responded to the requests for information by explaining that the material sought concerned government-to-government contracts containing non-disclosure clauses, which fell within the exemptions under section 6(1) and (2) of the Access to Information Act (the Act). According to Dr. (Eng.) Joseph Njoroge, the information in issue was protected from disclosure by sections 3(6) and (7) of the Official Secrets Act. He contended that the petitioners had not demonstrated the necessity of accessing the documents; that disclosure would endanger national security; and that the petition was premature for failure to exhaust the dispute resolution mechanisms provided under the Act. 14.Missing from the record but referred to in the impugned judgment was the replying affidavit sworn on 14th December 2021 by Leonard Ngaluma, the secretary to the 4th respondent (Commission on Administrative Justice). According to the judgment, Leonard Ngaluma deponed that the Commission had received a letter dated 17th April 2020 from the Managing Director, Kenya Railways Corporation (KRC), stating that the information requested by the 1st respondent related to projects between the Government of the People’s Republic of China and the Government of Kenya; that KRC’s role was solely implementation of the contracts; that the contracts were in the custody of the appellant’s office; and that the agreements had non-disclosure clauses, and that disclosure of such information would be in breach of the contract. 15.Leonard Ngaluma further deponed that the 1st respondent wrote to the appellant with copy to the Commission seeking to be facilitated with the information; that, upon further consideration, the Commission wrote a letter dated 26th June 2020 to the Solicitor General forwarding the 1st respondent’s request for information; that the Commission received a response from the Deputy Solicitor General vide a letter dated 28th August 2020 stating that the appellant’s office was not the custodian of project documents, and that the requested documents could not be availed as doing so would be in breach of the agreements and cause serious legal and financial repercussions; and that, while the Commission was still pursuing the matter, the 1st and 2nd respondents filed the petition. 16.The petition was canvassed by way of written submissions and highlighted orally in court on 25th February 2022. 17.In its judgment dated 13th May 2022, the High Court (Mativo, J.), (as he then was) began by addressing the issue of res judicata. The court found that the earlier proceedings pleaded by the appellant concerned the legality of directives compelling the use of the SGR and the socio-economic impact of the Take-or-Pay Agreement whereas the present petition was narrowly concerned with the constitutional right of access to information under Article 35 of the Constitution. Accordingly, the court held that the causes of action, issues and reliefs were manifestly different, and that the doctrine of res judicata did not apply. 18.The court then proceeded to consider whether Solomon Kitungu and Dr. Julius Muia could be held personally liable. After considering the scope of statutory immunity under section 22 of the National Government Coordination Act and the legal threshold for establishing bad faith, the court held that allegations of bad faith require cogent evidence of dishonesty, abuse of power or improper motive. In the circumstances, the court found that the acts of those officers had not met the high evidentiary threshold required to displace the statutory protection; and that, therefore, the officers’ joinder in a personal capacity was unwarranted. 19.On the issue as to whether the 1st and 2nd respondents exhausted the existing internal remedies, the court held that section 14 of the Act is permissive rather than mandatory, noting the use of the word “may” rather than “shall”; that, in any event, the 1st and 2nd respondents had pursued the available mechanisms, including engaging the 4th respondent; that the prolonged failure by the State to respond to the information requests for over one-and-a- half years could not be cured by invoking the doctrine of exhaustion; and that, under section 9(6) of the Act, failure to respond within the statutory period is deemed a refusal. 20.In addition to the foregoing, the court rejected the appellant’s reliance on the Official Secrets Act, holding that the Act must be read subject to Article 35 of the Constitution and the Access to Information Act, particularly in light of the consequential amendments expressly subordinating the Official Secrets Act to the constitutional right of access to information. The court emphasized that this was a single constitutionally grounded system governing access to information, and that all statutory exemptions must be narrowly construed and justified under Article 24 of the Constitution. 21.Turning to the substantive refusal to disclose information, the court held that the burden rests on the State to demonstrate, with evidence, that the information sought falls within the statutory exemptions under section 6 of the Act; and that mere assertions of national security, commercial sensitivity or non-disclosure clauses were insufficient. The court observed that the SGR project had been completed; that the agreements involved the expenditure of public funds; and that the public interest in transparency, accountability and oversight of public finance outweighed any speculative harm alleged by the State. The court further held that national security cannot be invoked to shield the State from embarrassment or scrutiny, and that any limitation of the right to access information must be reasonable, justifiable and the least restrictive means applied. 22.In view of the foregoing, Mativo, J. held that the petition had succeeded and made the following orders in the respondent’s favour:“(a)A declaration be and is hereby issued that the failure by the Respondents to provide information sought under Article 35(1)(a) and also to publicise the information in accordance with Article 35(3) on the basis of the 1st Petitioner’s request dated 16th December 2019 is a violation of the right to access to information.b.A declaration be and is hereby issued that the failure by the Respondents to provide information sought under Article 35(1)(a) and also to publicise the information in accordance with Article 35(3) on the basis of the 1st Petitioner’s request dated December 16, 2019 is a violation of Article 10 of the Constitution.c.An order compelling the Respondents to forthwith provide, at the Respondents’ cost, information sought by the 1st Petitioner in his letters to the Respondents dated December 16, 2019 and May 13, 2021.b.No orders as to costs.” 23.Aggrieved by the learned Judge’s decision, the appellant filed the instant appeal on the following four grounds set out in the Memorandum of Appeal dated 21st September 2022:“1.The Learned Judge erred in law and fact by failing to appreciate the exemptions to sections 3(6)(7) of the Official Secrets Act (cap 187).2.The learned Judge erred in law by failing to appreciate the statutory application of exemptions in section 6(1) and (2) of the Act.3.The learned Judge erred in fact and in law by failing to appreciate the existence and significance of non-disclosure clauses in contractual obligations between the Government of Kenya, foreign nations or their agencies.4.That the learned Judge failed to appreciate that the petitioners did not prove the necessity of their request and the beneficial action to be undertaken by disclosure of the information.” 24.On the grounds aforesaid, the appellant seeks orders to allow the appeal; to set aside the impugned judgement; and for the following declarations:c.A declaration that the contracts concessions, agreements and or Memorandum of Understanding relating to the financing, construction, management operation and maintenance of the Standard Gauge Railway falls under the protections and exemptions of section 6(1) and 6(2) of the Access to Information Act.d.A declaration that the concessions, agreements and or Memorandum of Understanding relating to the operation of the Standard Gauge Railway including the Take or Pay Agreement between Kenya Railways, Kenya Ports Authority and the Africa Star Railway Operations Company Ltd falls under the protections and exemptions of section 6(1) and 6(2) of the Access to Information Act.e.A declaration that all contracts entered into including loan agreements, concession agreements, guarantees and or collateral for financing management, operation and maintenance of the Standard Gauge Railway falls under the protections and exemptions of section 6(1) and 6(2) of the Access to Information Act.” 25.In support of the appeal, learned counsel for the appellant, Penda P. M. (Litigation Counsel), filed written submissions dated 22nd May 2025 as well as a case digest and bundle of authorities dated 8th December 2025. 26.In rebuttal, learned counsel for the 1st and 2nd respondents, M/s. Otieno Ogola & Company, filed written submissions dated 4th December 2025. 27.On her part, learned counsel for the 3rd respondent, Ms. Emily Kinama, filed written submissions, a case digest and bundle of authorities dated 9th December 2025. 28.Last but not least, learned counsel for the 4th respondent, Ms. Elizabeth Musembi, filed written submissions and a list and bundle of authorities dated 4th August 2025. 29.Having considered the record of appeal, the grounds on which it is anchored, the rival submissions of learned counsel and the law, we form the view that the following four issues commend themselves for our determination, namely: (i) whether the learned Judge failed to appreciate the exemptions to section 3(6)(7) of the Official Secrets Act; (ii) whether the learned Judge failed to appreciate the statutory application of the exemptions to sections 6(1) and (2) of the Access to Information Act; (iii) whether the learned Judge failed to appreciate the existence and significance of non-disclosure clauses in contractual obligations between the Government of Kenya and foreign nations or their agencies; and (iv) whether the learned Judge failed to appreciate that the 1st and 2nd respondents did not prove the necessity of their request and the beneficial action to be undertaken by disclosure of the information in issue. 30.On the 1st issue as to whether the learned Judge failed to appreciate the exemptions to section 3(6) and (7) of the Official Secrets Act, it is noteworthy that counsel for the appellant did not submit thereon in either the written submissions or oral highlights when the appeal came for hearing on the Court’s virtual platform on 9th December 2025. In effect, learned counsel made no attempt to canvass ground No. 1 raised in the appellant’s Memorandum of Appeal. Accordingly, the 1st ground of appeal is deemed as having been abandoned. 31.Be that as it may, counsel for the respondents made written and oral submissions on the 1st issue and invited us to pronounce ourselves thereon. In the circumstances, it would be remiss of us to give it a wide berth. 32.In that regard, counsel for the 1st and 2nd respondents submitted that section 3(6) and (7) of the Official Secrets Act only bespeaks acts that are prejudicial to the Republic and the offences to those acts; that a right of access to information guaranteed under Article 35 of the Constitution and Access to Information Act cannot be reduced or interpreted in the auspices of acts that are prejudicial to the Republic; that the Official Secrets Act cannot be used as a shield against disclosing information, which information affects the people of Kenya with regard to contracts entered into between the Republic and other foreign agencies in which millions of shillings belonging to the taxpayers is concerned; and that section 3(6) and (7) of the Official Secrets Act has to be brought into conformity with the Constitutional edifice, and must be construed with such adaptations, alterations and modifications so as to conform with the Constitution, particularly Article 35 on access to information. 33.On their part, counsel for the 3rd respondent submitted that section 3(6) and (7) of the Official Secrets Act cannot limit the right to access information because section 29 of the Act provides for consequential amendments and identified statute law that has been amended to conform to Article 35 of the Constitution; that section 4 of the Schedule to the Act expressly provides for consequential amendments to section 3 of the Official Secrets Act to the effect that its provisions shall apply subject to Article 35 of the Constitution and the law relating to access to information to ensure conformity with Article 35 of the Constitution; that this provision of the Schedule means that section 3 (6) and (7) of the Official Secrets Act were no longer in operation, and that the remaining provisions were subject to both Article 35 of the Constitution and the Access to Information Act; and that, in addition to the foregoing, Article 24(1) of the Constitution provides that “a right or fundamental freedom in the Bill of Rights shall not be limited except by law.” In this instance, Section 3(6) and (7) of the Official Secrets Act cannot limit the right of access to information because they were amended, and that they are therefore no longer in force as law. 34.Counsel for the 4th respondent submitted that the Official Secrets Act was designed to safeguard the State's official secrets; that the primary aim of the Act is to safeguard information considered crucial for national security and integrity; that, as the name suggests, the intention of the legislation was not to bar access to information, but to identify circumstances under which such access may be restricted; that section 29 of the Access to Information Act provides for its primacy vis-à-vis provisions of other laws, including the Official Secrets Act, through consequential amendments thereto; that the section provided that the provisions of Official Secrets Act shall apply subject to Article 35 of the Constitution, hence the addition of Section 3(8); and that the provisions of section 3(6) and (7) of the Official Secrets Act are required to conform to the Constitution or otherwise be construed with such adaptations, alterations and modifications so as to be in conformity with the Constitution. 35.According to counsel, the enactment of the Access to Information Act should be viewed in the broader context of operationalizing the Constitution, a process that requires development of a new ethos amongst all segments of society, both public and private, so as to promote a culture of openness and transparency. Counsel submitted that access to information is a right under the Bill of Rights in our Constitution, and that this right should be implemented within the scope and provisions of the Constitution; that denial and/or refusal by public offices to provide information when requested can only be justified within the confines of the Access to Information Act and not the Official Secrets Act. 36.Counsel further submitted that the right to access information held by the State is a constitutionally guaranteed right, which may only be limited in accordance with Article 24 of the Constitution, which provides the standards for justifiable limitation of constitutional rights and the criteria for such limitation. 37.Counsel cited the case of Jack Mukhango & 12 others v The Attorney General, Independent Electoral and Boundaries Commission and Director of Public Prosecutions [2017] eKLR for the proposition that the limitation of a fundamental right or freedom is permissible on two conditions: firstly, limitation by a law; and, secondly, to the extent only that the limitation is reasonable and justifiable in an open and democratic society 38.We also take to mind the learned Judge’s comprehensively reasoned decision rendered thus in part:“75.The right of access to information held by the state is guaranteed by Article 35(1) of the Constitution …. The Access to Information Act was enacted to give effect to Article 35. It provides a framework for public entities and private bodies to proactively disclose information that they hold and to provide information on request in line with the constitutional principles.76.The Respondents argument ignores the provisions of section 29 of the Act which provides for consequential amendments. It provides that the written laws identified in the Schedule are amended in the manner identified therein. Specifically, paragraph 4 (1) of the Schedule provides in peremptory terms that the provisions of Official Secrets Act shall apply subject to Article 35 of the Constitution ….77.Even if section 29 and paragraph 4 of the schedule cited above did not exist, the drafters of the Constitution were aware of the need for all the existing laws as at 27th August 2010 to be read in a manner that ensures they all conform with the Constitution ….” 39.As the learned Judge correctly observed:“78.All law must conform to the constitutional edifice. It follows that the provisions of Sections 3 (6) & (7) of the Official Secrets Act must conform to the Constitution or be construed with such adaptations, alterations, modifications so as to conform with the Constitution …. This statement is true of decisions made by statutory bodies and State organs declining to divulge information to members of the public. The governing statute and the resultant decision must be interpreted through the prism of Articles 35 and 47 of the Constitution….79.There are not two systems of law regulating access to information held by public bodies, each operating in its own field. Rather, there is only one system of law regulating the right to access information shaped by the Constitution which is the supreme law, and all law, including the Official Secrets Act derives its force from the Constitution and is subject to constitutional control.” 40.In conclusion, the learned Judge had this to say:“80.The entrenchment of the right to access information as a fundamental right should, as a constitutional principle expand the scope of the right. First, parties, who were once denied access to information on the basis of the now obsolete provisions of the Official Secrets Act cited by the Respondents on the mere allegation of ‘state secret dichotomy,’ should now access information only subject to the exemptions enumerated at section 6 (1) & (2) of the Access to Information Act. Second, the right to access information held by the State is now constitutionally guaranteed, so, it can only be limited if the decision or law limiting the right passes an article 24 analysis test. Third, Article 23(3) of the Constitution lists remedies available from this court in the event of breach or rights ….82.By now it is manifest clear that the Respondents’ attempt to hide behind the provisions of sections 3(6) & (7) of the Official Secrets Act flies on the face of Article 35, section 29 of the Access to Information Act and Paragraph 4 of the Schedule to the said act and falls to be rejected.” 41.We take to mind the provisions of section 3(6) and (7) of the Official Secrets Act (Cap. 187) which reads:“3.Acts prejudicial to Republic6.Any person who has in his possession or under his control any code word, plan, article, document or information of a kind or in the circumstances mentioned in paragraphs (a) to (d) inclusive of subsection (3) of this section, and who—a.communicates the code word, plan, article, document or information to any person, other than a person to whom he is authorized to communicate it or to whom it is his duty to communicate it; orb.retains the plan, article or document in his possession or under his control when he has no right so to retain it or when it is contrary to his duty so to retain it, or fails to comply with all directions issued by lawful authority with regard to the return or disposal thereof; orc.fails to take reasonable care of, or so conducts himself as to endanger the safety of, the code word, plan, article, document or information, shall be guilty of an offence and liable to imprisonment for a term not exceeding five years.7.Any person who—a.allows any other person to have possession of any official document issued for his use alone, or communicates to any other person any code word so issued; orb.without lawful authority or excuse, has in his possession any official document or code word issued for the use alone of some person other than himself; orc.on obtaining possession of any official document by finding or otherwise neglects or fails to restore it to the person or authority by whom or for whose use it was issued or to a police officer, shall be guilty of an offence and liable to imprisonment for a term not exceeding five years”. 42.These provisions criminalised unauthorised disclosure, communication, and/or retention of information or documentation, classified as official secrets, by custodians or handlers of State information. The provisions were typically invoked to justify refusal of disclosure of State information. However, the promulgation of the Constitution of Kenya, 2010 prompted the enactment of the Access to Information Act Cap. 7M to give effect to Article 35(1) of the Constitution, which guarantees every citizen the right of access to information held by the State, as well as information held by another person and required for the exercise or protection of any right or fundamental freedom. 43.It is instructive that section 29 of the Access to Information Act amended section 3 of the Official Secrets Act vide paragraph 4 of the Schedule to the Act by inserting sub-section (8), which provides that:(8)The provisions of this section shall apply subject to Article 35 of the Constitution and the law relating to access to information”. 44.In our considered view, the effect of the addition of subsection 8 was to unequivocally include State information classified as official secrets as being among the information which every citizen has the right to access under Article 35(1) of the Constitution as operationalised through the Access to Information Act. It is not lost on us that that right can only be limited in the manner prescribed under Article 24 on limitation of rights and fundamental freedoms. In conclusion, we agree with the learned Judge’s holding that mere invocation of sections 3(6) and (7) of the Official Secrets Act is insufficient to justify refusal of a request to access information held by the State. Any refusal must satisfy the constitutional threshold set out under Article 24 of the Constitution and comply with the provisions of the Access to Information Act in order to be considered lawful 45.To conclude in the words of Harold L. Cross in The People's Right to Know (Columbia University Press 1953): “Public Business is the public's business. The people have the right to know. Freedom of information is their just heritage. Without that, the citizens of a democracy have but changed their kings.” Simply put, access to state information is not a bureaucratic privilege but the very distinction between cherished democracy and dreadful monarchy. 46.Turning to the 2nd issue as to whether the learned Judge failed to appreciate the statutory application of the exemptions stipulated in section 6(1) and (2) of the Access to Information Act, we take to mind the learned Judge’s holding on the issue in the following words:“86.… the burden of establishing that the refusal of access to information is justified rests on the state or any other party refusing access ….87.In order to discharge its burden under section 6, the state must provide evidence that the record in question falls within the description of the statutory exemption it seeks to claim. The proper approach to the question whether the state has discharged its burden under section 6 is therefore to ask whether the state has put forward sufficient evidence for a court to conclude that, on the probabilities, the information withheld falls within the exemptions claimed.” 47.Addressing himself to the threshold for justification of limitations to the right of access to information, the learned Judge observed:“88.Any restriction on information that a government seeks to justify on grounds of national security must have the genuine purpose and demonstrable effect of protecting a legitimate national security interest. To establish that a restriction on access to information is necessary to protect a legitimate national security interest, a government must demonstrate that: (a) the expression or information at issue poses a serious threat to a legitimate national security interest; (b) the restriction imposed is the least restrictive means possible for protecting that interest; and (c) the restriction is compatible with democratic principles.89.…. In particular, a restriction sought to be justified on the ground of national security is not legitimate if its genuine purpose or demonstrable effect is to protect interests unrelated to national security, including, for example, to protect a government from embarrassment or exposure of wrongdoing, or to conceal information about the functioning of its public institutions, or to entrench a particular ideology, or to suppress industrial unrest.90.No restriction on this right may be imposed on the ground of national security unless the government can demonstrate that the restriction is prescribed by law and is necessary in a democratic society to protect a legitimate national security interest.” 48.On the issue as to the plea of the non-disclosure clause to justify refusal to provide the requested information, the learned Judge had this to say:“91.The other ground cited is that the contracts contain non- disclosure clauses. Disclosure will be refused if releasing that information would cause harm to the commercial or financial interests of the business. Such interests in my view include 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, is 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 ….93.The recitation of the statutory language of the exemptions claimed (as has happened in this case) is not sufficient for the state to show that the information sought falls within the exemptions claimed. Nor are mere ipse dixit affidavits proffered by the state. The affidavits for the state must provide sufficient information to bring the record within the exemption claimed. In the minimum, in reverence to Articles 3(1), 10, 35, and 47 of the Constitution, the Respondents ought to have availed recanted documents but clearly highlighting the clauses falling within the permissible exemptions, and leave to the court to determine whether or not to uphold the exemptions. This recognises that access to information held by the state is important to promoting transparent and accountable government, and people‘s enjoyment of their rights under the Bill of Rights depends on such transparent and accountable government ….” 49.In conclusion, the learned Judge pronounced himself thus:“94.Ultimately, the question whether the information put forward is sufficient to place the record within the ambit of the exemption claimed will be determined by the nature of the exemption. The question is not whether the best evidence to justify refusal has been provided, but whether the information provided is sufficient for a court to conclude, on the probabilities, that the record falls within the exemption claimed. If it does, then the state has discharged its burden under section 6. If it does not, and the state has not given any indication that it is unable to discharge its burden because to do so would require it to reveal the very information for which protection from disclosure is sought, then the state has only itself to blame.95.The failure to take a decision, in the context of the Act, migrates into a refusal of the request. The culture of justification permeates the Act. The mere request for information held by a public body obliges the public officer to produce it or justify withholding it. Public bodies have a constitutional duty to give people access to information so that they can exercise their rights. When they try to subvert a person’s constitutional right by being unresponsive and playing possum their conduct should be deprecated.” 50.Faulting the learned Judge for his decision in that regard, counsel for the appellant submitted that the 1st and 2nd respondents were promptly responded to by the State Offices on receipt of their request for information on the SGR project; that, in doing so, the appellants had discharged their obligations under Section 8 and 9 of the Access to Information Act; that, however, the 1st and 2nd respondents appeared not to be content by the responses that were availed to them and thus gave rise to the suit. 51.According to counsel, the response from the Office of the Attorney General and Kenya Railways Corporation communicated their view that the information sought by the 1st and 2nd respondents was confidential by virtue of the non-disclosure clause in the bilateral agreement between the Government of the People's Republic of China and the Government of Kenya. Counsel contended that if the information sought was disclosed, this would amount to breach of the contractual terms; that, in the Petition, the PS State Department of Treasury clearly enumerated the responses to the 1st and 2nd respondents and gave clear and valid reasons for the non-disclosure; and that the responses formed the basis of justifying the denial of the 1st respondent’s request in accordance with Section 6(1) and (2) of the Access to Information Act. 52.Counsel further submitted that the right of access to information is not absolute; that the limitations to this right have been clearly set out in Section 6 (1) (a) and (2) (d), (e) and (l) of the Access to Information Act, which the learned Judge failed to take into consideration; and that the learned Judge also failed to take into consideration that the information bordered on Kenya's foreign relations as captured under section 6(2)(d) of the Access to Information Act. 53.In counsel’s view, it was not disputed that the parties to the SGR Contract were the Government of Kenya and People's Republic of China, and that the same was reached through bilateral agreements and Memoranda of Understanding of various dates and times; and that the learned Judge erroneously implied that the reasons given to the 1st and 2nd respondents when their requests for information were declined were not sufficient for the court to arrive at the conclusion that the denial of information was within the limits permitted by section 6(1) and (2) of the Access to Information Act. 54.To counter the appellant’s contentions, counsel for the 1st and 2nd respondents submitted that the information sought did not qualify as privileged information under the Access to Information Act; and that the appellant predicated its argument on the unfounded view that the information sought may prejudice national security and, further, that it may impede the economic interests of third parties. According to counsel, nothing could be further from the truth. 55.Counsel further submitted that the information sought related to commercial contracts signed by the Republic of Kenya on behalf of its citizens with third party foreign entities; that the contracts in issue were for commercial activities affecting the people of Kenya; that the funding of the said contracts are to be borne by the Kenyan tax payer; and that it is therefore only prudent that the said tax payer be informed and notified of the full extent of their commitment and the nature of the loans they stood to pay. 56.Learned counsel urged that a cursory reading of section 6 of the Access to Information Act leaves no doubt in our minds that the Act was enacted to give effect to the provisions of the Constitution on the rights of access to any information in the custody of a public entity or held by the state; that section 6 espouses in peremptory terms the right of access to information to wit that the party requesting must be given access as long as the requested information does not fall within the statutory exceptions; that the appellant merely cited the exemption clauses, but failed to prove how those clauses would affect the security or business interest of the third parties; that the appellant was duty bound to enumerate and explain sufficiently how the exemption clauses under Section 6 could be brought under the exemption claimed; that it is, and was, the appellant’s duty under Articles 3 (1), 10 and 47 of the Constitution to avail recanted documents; and that failure by the appellant to explain in details why the exemptions would apply can only mean one thing, that the State acted in violation of Article 35 of the Constitution. 57.Counsel cited the case of Famy Care Limited v Public Procurement Administrative Review Board & another [2012] KEHC 5194 (KLR) for the proposition that the right of access to information is one of the rights that underpin the values of good governance, integrity, transparency and accountability as well as the other values set out in Article 10 of the Constitution; and that the right is based on the understanding that, without access to information, the achievement of the higher values of democracy, the rule of law and social justice set out in the preamble to the Constitution as well as in Article 10 cannot be achieved unless the citizen has access to information. 58.In addition to the foregoing, counsel cited the case of President of the Republic of South Africa and Others v M & G Media Ltd [2011] ZACC 32 for the proposition that it is impossible to hold accountable a government that operates in secrecy; and that the right of access to information is crucial to the realisation of other rights in the Bill of Rights. 59.On their part, counsel for the 3rd respondent began by citing the case of Kandie v Alassane Ba & another [2017] KESC 13 (KLR) where the Supreme Court described the procedure applied to evaluate limitations under Article 24 as a reasonable and justifiable test, holding that an analysis must be done on a case-by-case basis. 60.In addition, counsel cited the case of Mary Nyawade v. Banking Fraud Investigation Department & 2 others [2017] KEHC 9108 (KLR) for the proposition that the grounds for the exception to disclose information should be clearly and narrowly defined, otherwise it would be too easy to broaden exceptions and withhold important information; and that the presumption is always in favour of disclosure, unless the information meets the so- called three parts test deduced from international law, namely: (a) that the information relates to legitimate interests protected by the law; (b) that disclosure of the information threatens to cause substantial harm to that interest; and (c) that the harm to the interest is greater than the public interest in receiving the information. 61.Counsel further submitted that the burden is on the party limiting the right of access to information to demonstrate that the principles in Article 24 have been observed; that section 6(1) provides a closed list as to information which must be limited from disclosure; and that what the Appellant averred in the affidavit at the trial court were mere assertions of the different exemptions as worded in the Act, but did not provide any evidence for the court to conclude on a balance of probabilities that the records fall within the exemptions claimed. 62.In further rebuttal, counsel for the 4th respondent submitted that the Access to Information Act, 2016 was enacted to give effect to Article 35 of the Constitution and the right to access information held by the State or any other persons. Counsel cited the case of Njuguna S. Ndung'u v Ethics & Anti-Corruption Commission & 3 others [2014] KEHC 1817 (KLR) in support of the submission that the right to access information goes hand in hand with the principle of maximum disclosure which establishes a presumption that all information by public bodies should be subject to disclosure, and that this presumption can only be restricted in limited circumstances. 63.Counsel further submitted that limitation of the right of access to information are contained in Section 6 of the Access to Information Act, which was enacted pursuant to Article 24 of the Constitution, and which requires any limitation of a constitutionally protected right to be anchored in law; that, where a public authority seeks to deny access to information, such authority bears the onus of justifying the refusal at each stage of the proceedings beyond merely stating that the information is limited by the section relied upon; and that the burden of proving the existence of the circumstances listed in section 6 of the Act rests with the public body or individual asserting the claim of privilege. 64.Counsel cited the case of Zebedeo John Opore v The Independent Electoral & Boundaries Commission [2017] KEHC 9217 (KLR) for the proposition that it has to be demonstrated how, if at all, any of the information sought falls within any of the exceptions stipulated in section 6, or that the refusal to provide the information is reasonable and justifiable in an open and democratic society so as to satisfy the provisions of Article 24 of the Constitution. According to counsel, the appellant ought to have demonstrated by way of evidence that the release of such documents would have been in breach of national security, but the appellant did not do so. 65.In conclusion, counsel argued that section 6(4) and (6) of the Act recognizes the need for balance between the protected interests and public interest by providing that information exempted from access may be disclosed when public interest outweighs the protected interests, and defers such determination to the courts; that the appellant’s submission that the requested information falls within Section 6(1) and (2) of the Access to Information Act, 2016 is misconceived in the instant case. 66.We take to mind the provisions of sections 6(1) and (2) of the Act, which set out the specific circumstances under which disclosure of information sought may be limited and read as follows:“6.Limitation of right of access to information1.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; ori.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 (Cap. 199); andl.any other information whose unauthorized disclosure would prejudice national security.” 67.Section 9(4) (c) of the Act prescribes the manner in which communication of a denial of a request to access information is to be made and reads as follows:“9.Processing of applicationAs soon as the information access officer has made a decision as to whether to provide access to information, he or she shall immediately communicate the decision to the requester, indicating—… …(c)if the request is declined the reasons for making that decision, including the basis for deciding that the information sought is exempt, unless the reasons themselves would be exempt information; ….” 68.In our considered view, it is not sufficient for a refusal of access to merely state that the information sought to be accessed falls within the exemptions under section 6 of the Act. The refusal must further provide a substantive explanation of the basis on which the information is classified as exempt. In effect, blanket denials, particularly where multiple and distinct categories of information are sought, would also be insufficient. It is also noteworthy that, when the refusal is challenged in court, the evidential burden rests on the entity declining access, as the handler or custodian of the information sought, to demonstrate through evidence that the information falls within the exemptions under section 6 of the Act. 69.In the English case of Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 (HL), the House of Lords established that the State's claim to withhold information is qualified: it must demonstrate real and specific harm, not merely assert the information's sensitivity. Lord Goff articulated the important principle that the public interest may outweigh the public interest in preserving confidence (see also Air Canada v Secretary of State for Trade (No 2) [1983] 2 AC 394; [1983] 2 WLR 494). 70.In President of the Republic of South Africa and Others v M & G Media Ltd (supra), the Constitutional Court of South Africa observed that:“16.The imposition of the evidentiary burden of showing that a record is exempt from disclosure on the holder of information is understandable. To place the burden of showing that a record is not exempt from disclosure on the requesting party would be manifestly unfair and contrary to the spirit of … the Constitution. This is because the requester of information has no access to the contents of the record sought and is therefore unable to establish that it is not exempt from disclosure under the Act. By contrast, the holder of information has access to the contents of the record sought and is able to establish whether or not it is protected from disclosure under one or more of the exemptions …. Hence … the evidentiary burden rests with the holder of information and not with the requester.” 71.In Zebedeo John Opore v The Independent Electoral And Boundaries Commission (supra), Mativo, J. (as he then was) persuasively held that:“28.The right of access to information is not absolute, but to satisfy the requirements set out under article 24 of the Constitution, the respondent must demonstrate that the limitation imposed on the constitutional right is “fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom and that it falls within the exceptions provided in section 6 of the act.”...30.In order to discharge its burden under section 6, the Respondent must provide evidence that the record in question falls within the description of the statutory exemption it seeks to claim. The proper approach to the question whether the Respondent has discharged its burden under section 6 is therefore to ask whether the Respondent has put forward sufficient evidence for a court to conclude that, on the probabilities, the information withheld falls within the exemptions claimed.31.The recitation of the statutory language of the exemptions claimed (as has happened in this case) is not sufficient for the Respondent to show that the record in question falls within the exemptions claimed. Nor is a mere ipse dixit affidavit proffered by the Respondent. The affidavit must provide sufficient information to bring the record within the exemption claimed. This recognises that access to information held by the state or public bodies is important to promoting transparent and accountable government, and people‘s enjoyment of their rights under the Bill of Rights depends on such transparent and accountable government. 72.Ultimately, the question whether the information put forward is sufficient to place the record within the ambit of the exemption claimed will be determined by the nature of the exemption. The question is not whether the best evidence to justify refusal has been provided, but whether the information provided is sufficient for a court to conclude, on the probabilities, that the record falls within the exemption claimed. If it does, then the Respondent has discharged its burden under section 6. If it does not, and the Respondent has not given any indication that it is unable to discharge its burden because to do so would require it to reveal the very information for which protection from disclosure is sought, then the Respondent has only itself to blame. For the Respondent to claim that it will have to analyse the data is not sufficient. In any event, what is sought is clearly spelt out in the letter requesting the information. It is not the analysis but the information stipulated in the letter requesting the information.” 73.In the instant case, Kenya Railways Corporation communicated its denial of the request vide the letter dated 18th December 2019 written by its General Manager, Legal Services & Corporation Secretary, stating that it was not party to some of the requested contracts; and that it was unable to provide the information relating to the other contracts to which it was party “on account of Section 6(1) & (2) Access to Information Act No. 31 of 2016 and due to contractual obligations of the parties.” 74.When the 1st respondent escalated the matter to the 4th respondent, Kenya Railways Corporation further clarified its refusal vide a letter dated 17th April 2020 stating that:“…the projects to which information is being requested in clause 1a- 1d are projects between the Government of the People’s Republic of China and the Government of Kenya, with Kenya Railway’s mandate solely being as an implementing agency of the said contracts. The custody of the said contracts is with the Office of the Hon. Attorney General.” 75.Following repeated prompts by the 4th respondent, the appellant communicated its refusal vide a letter dated 28th August 2020 authored by the Deputy Solicitor General stating that the Office of the Hon. Attorney General was not the custodian of Project documents; that the office’s role was restricted to rendering legal advice to the Government; and that the contracts had non-disclosure clauses and that, therefore, the requested documents could not be availed as their disclosure would be in breach of the agreements and “might have serious legal and financial repercussions.” 76.It is noteworthy that the repeated refusal aforesaid addressed the information requested in clause 1(a) to (d) of the 1st respondent’s letter, but failed to expressly communicate a decision with regard to the requests for access to the additional documents and information specified in clauses 1(e) to 4 of the 1st respondent’s letter. 77.The assertion that the appellant and Kenya Railways Corporation were not in possession, custody or control of the project documents and contracts, notwithstanding their status as parties to the contracts, participants in the generation of the documents, and/or advisers during the preceding negotiations, is by no means persuasive. Section 27 of the Office of the Attorney- General Act (Cap. 6A) expressly provides that “the Office shall be the depository of all laws and local and international documents, agreements and treaties signed for or on behalf of the Government.” 78.In the replying affidavit filed by the appellant in response to the petition, it was deponed that refusal to provide the 1st respondent with the requested information and documents was justified in that such information fell within the exemptions set out in section 6(1) and (2) of the Act, and that the disclosure of the information sought was likely to:“a.undermine the national security of Kenya; since terms in the contract touch on foreign government information with implications on national security and foreign relations.b.… substantially prejudice the commercial interests of the third parties in this case foreign governments who may be signatories of the contracts and or M.O.Us.c.… influence the court of appeal’s decision making process in Civil Appeal No. E12 of 2021 being the appeal filled by Kenya Ports Authority against the orders of court issued on 6th November 2020 in the consolidated petitions 159 of 2018 and 201 of 2019 impede the due process of law; noting that the appeal is ongoing.d.… cause substantial harm to the ability of the Government to manage the economy of Kenya; in the event of the breach of the terms of the agreement with the foreign nations or corporations, e.g. Exim Bank, it would cripple the [appellants’] ability to implement the Integrated National Transport Policy.” 79.Apart from annexing the refusal letters and correspondence with the 4th respondent, the appellant failed to lay an adequate basis to support the averments that the information requested by the 1st respondent fell within the exemptions under section 6(1) and (2) of the Act for the afore-mentioned reasons. In particular, it was not demonstrated how granting access to the information was likely to undermine a legitimate national security interest, prejudice the commercial interests of foreign governments, influence related litigation, or harm the Government’s ability to manage the economy. 80.In Legal Advice Centre t/a Kituo Cha Sheria & 33 others v Cabinet Secretary, Ministry of Education & 7 others [2021] KEHC 390 (KLR), an expanded bench of the High Court, drawing guidance from the Global Principles on National Security and the Right to Information (Tshwane Principles), reiterated that bare refusals claiming a risk to national security interests without a specific and substantive basis does not suffice. As the court correctly observed:“64.We note that under principle 4 of the Tshwane Principles, it is not sufficient for a public authority seeking to withhold information to simply assert that there is a risk of harm but such authority is under a duty to provide specific, substantive reasons to support its assertions. In the case of Trusted Society of Human Rights Alliance & 3 others v Judicial Service Commission (2016) eKLR the court held that the exceptions should apply only where there is a risk of substantial harm to the protected interest and where that harm is greater than the overall public interest in having access to that information.” 81.In view of the foregoing, we find nothing to fault the learned Judge for relying on, and applying the exemptions set out in section 6(1) and (2) of the Act to the circumstances of this case. All said and done, there is a general presumption drawn from the afore-cited authorities that, in the absence of countervailing public interest, State-held information should be disclosed. Moreover, the right of access to information is a fundamental constitutional value, a precept invariably upheld by courts of justice, and which creates a general entitlement to information held by public authorities and construed liberally in favour of disclosure. 82.On the issue as to whether the learned Judge failed to appreciate the existence and significance of non-disclosure clauses in contractual obligations between the Government of Kenya and foreign nations or their agencies, we take to mind the fact that the learned Judge was guided by the persuasive decision in Transnet Ltd and Another v SA Metal Machinery Co. [2005] ZASCA 113 where the court made a decision on a request for information relating to tender documents after the tender had been issued. As the learned Judge observed with reference to the afore-cited Transnet case:“…. The requested records were made available; however, some parts of the requested documents were omitted and the reason given by the public body was that the record contains commercial information of a third party. The court held that the confidentiality of the information did not apply because the tender had been awarded and tender documents were therefore public documents. The court further held that releasing the records would not prejudice the company. The court addressed the issue of the probability of harm. Noting that the tender document was already a public document, releasing the document could not reasonably be expected to harm or disadvantage the company in any way. “ 83.According to the learned Judge, the finding in the Transnet’s case applied to the instant case because the SGR project had already been concluded. In his considered view, no prejudice would have been occasioned to the parties to the contract. As the learned Judge went on to conclude, the right to obtain the information sought was of primary consideration. 84.Faulting the learned Judge’s reasoning, counsel for the appellant submitted that the learned Judge failed to appreciate the substance of the information sought by the 1st respondent; that the information sought revolved around public procurement processes; and that section 67 of the Public Procurement & Disposal Act contemplates the significance of non-disclosure clauses in procurement contracts in that it mandates confidentiality during or after a procurement process. 85.Counsel cited the High Court’s decision in Commission for Human Rights & Justice (CHRJ) & another v Chief Officer, Medical Services County Government of Mombasa & 3 others [2022] KEHC 12994 (KLR) for the proposition that, under section 6(3) of the Access to Information Act as read with section 67 of the Public Procurement & Disposal Act, any request for access to information would be refused to protect the commercial records of a third party in terms of an agreement to protect 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 interests of the body or third party; information supplied in confidence by a third party whose disclosure could reasonably be expected to put the party at a disadvantage in contractual or other negotiations of prejudice the business’ competitive position; and confidential information whose disclosure would amount to a duty of confidence owed to a third party. 86.Counsel further submitted that the non-disclosure clauses in the contracts sought by the 1st and 2nd respondents were meant to sustain interstate integrity; that disclosure of such information would not only amount to breach of the bilateral agreements, but equally stood to endanger the national security of the nation and injure the foreign relations established under and by virtue of bilateral agreements, such as the SGR project. According to counsel, the learned Judge unduly faulted the State Offices for not providing redacted documents as proof of the existence of the non- disclosure clauses. 87.Counsel for the 1st and 2nd respondents were of a different view and submitted that the burden was on the appellant to provide sufficient information that, due to the existence of the non- disclosure clauses in the contractual obligations, the disclosure of such information would affect the other parties in a particular manner, which the appellant failed to do; that, instead, the appellant merely cited the exemption without sufficient explanation, if any; that, in any case, non-disclosure can only stand where parties are at a stage of entering into contracts, concessions or agreements; that, in the instant case, the agreements had already been concluded; that the information sought was to determine how such contracts, agreements, concessions and guarantees were likely to affect the people of Kenya, who bore the brunt of paying taxes, and considering that proper public participation was not conducted; and that the appellant did not demonstrate how the information sought qualified for exemption or protection. 88.Counsel cited the case of Orange Democratic Movement Party (ODM) v Independent Electoral and Boundaries Commission [2019] KEHC 2492 (KLR) for the proposition that the scheme of the Access to Information Act is such that information must be disclosed unless it is exempted from disclosure under one or more construed exemptions; and that the holder of the information bears the onus of establishing that the refusal of access to the record is justified under the Act for the court to uphold the refusal. 89.Counsel argued that the information sought relates to commercial contracts entered into on behalf of the people of Kenya, and that mere sweeping statements that the information sought will impede the commercial interests of third parties cannot hold. 90.On their part, counsel for the 3rd respondent submitted that the government cannot enter into public contracts with foreign nations touching on public assets and impacting on the rights of Kenyans and thereafter rely on the defence that breach of the non- disclosure clauses will harm the ability of the government to manage the economy of Kenya. According to counsel, this is not a justifiable limitation on the right of access to information contemplated in section 6(1) and (2) of the Act. In conclusion, counsel contended that Article 35(3) of the Constitution mandates the State to proactively disclose important information affecting the nation as provided in Section 5 of the Act. 91.In the same vein, counsel for the 4th respondent submitted that the inclusion of non-disclosure clauses in contractual agreements between the Government of Kenya and foreign states or their agencies cannot, in and of itself, lawfully override the constitutional right of access to information guaranteed under Article 35 of the Constitution; that, while such clauses may serve legitimate purposes, such as protecting sensitive commercial or diplomatic interests, their application must be strictly confined within the permissible limitations set out in section 6 of the Access to Information Act; and that the burden lies with the public entity asserting confidentiality to demonstrate that the information in question falls within these narrowly defined exceptions. 92.Counsel further submitted that the appellant has not demonstrated how the non-disclosure clauses fall within section 6 of the Access to Information Act. According to counsel, non- disclosure clauses do not grant absolute immunity from disclosure obligations and, where public interest, transparency, or accountability are at stake, particularly in matters involving public interest and use of public resources or national obligations, such clauses must yield to constitutional imperatives. In conclusion, counsel contended that the appellant's reliance on nondisclosure as a basis for denying access to information is therefore unjustified, unlawful, and unconstitutional. 93.Having carefully considered the record as put to us and the rival submissions of counsel for the appellant and for the respondents, we find that the appellant failed to lay a substantive basis for its claim that the information requested fell within the exemptions set out in section 6(1) and (2) of the Act. To our mind, the appellant failed to sufficiently demonstrate the manner in which the disclosure of SGR contracts with non-disclosure clauses would expose the Government to the alleged “serious legal and financial repercussions”; or that the harm likely to arise from disclosure outweighed the public interest in favour of disclosure. 94.Section 6(4) of the Act is emphatic that public interest is an important factor in considering whether information sufficiently demonstrated as falling within the statutory exemptions ought to be disclosed notwithstanding the exemption. The sub-section reads:(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. 95.In their petition, the 1st and 2nd respondents demonstrated the overwhelming public interest in disclosure of the information and documents relating to the SGR project, having regard to the colossal scale of the project and its far-reaching effects, particularly on the country’s external debt burden. In view of the fact that the appellant failed to lay a substantive basis for classifying the said contracts as exempt under section 6(1) and (2) of the Act, the learned Judge cannot be faulted for concluding, as we hereby do, that the public interest outweighed the pleaded justifications for barring access to such information. 96.Turning to the 4th and final issue, the pertinent two-pronged question is whether the 1st and 2nd respondents demonstrated the necessity and benefits served by disclosure of the information sought; and whether the learned Judge was at fault in appreciating their need for the request and the beneficial interests in disclosure. 97.In this regard, counsel for the appellant contended that the 1st and 2nd respondents failed to demonstrate the necessity of the contracts to either themselves or to the public; that no prima facie case was established of the beneficial action they intended to undertake upon production of the requested documents; that the court did not sufficiently address this issue in its judgment; and that it was equally important for the court to determine whether the 1st and 2nd respondents had established the necessity to request the information and what they planned on doing with such information in the event that it was availed. 98.Counsel cited the Canadian case of Supreme Court in Canada in Ontario (Public Safety and Security) v Criminal Lawyers’ Association, 2010 SCC 23 [2010] 1 SCR 815 for the proposition that, where a claimants seek to enforce the right to access public information, necessity of having the prayers granted and to publicise the information sought must be established and, thereafter, the claimant must go on to show that there are no countervailing considerations inconsistent with the production of the information. 99.On their part, counsel for the 1st and 2nd respondents submitted that the necessity of the request was premised on Article 35 of the Constitution; that they exhausted all the laid down procedures before lodging the petition; that there can be no wrong without an effective remedy; and that the superior court was an effective platform to litigate and seek redress for violations of Article 35 of the Constitution by “rogue respondents”. 100.Counsel for the 3rd respondent submitted that section 4(2) of the Access to Information Act provides that every citizen’s right to access information is not affected by any reason the person gives for seeking access or the public entity's belief as to why the person is seeking the information; and that this was affirmed in the cases of Edwin Harold Dayan Dande & 3 others v British America Investments Co (K) Ltd & another [2019] KEHC 9862 (KLR); and Trusted Society of Human Rights Alliance & 3 others v Judicial Service Commission & another; Law Society of Kenya [2016] KEHC 3581 (KLR). 101.Last but not least, counsel for the 4th respondent submitted that, under Article 35 of the Constitution and section 4(2) of the Access to Information Act, the right to access information is not contingent upon the applicant demonstrating the necessity of the request or the intended use of the information; that the law expressly provides that a citizen's right to access information shall not be affected by the reason for seeking such information; and that the 1st and 2nd respondents were under no obligation to prove that the requested information would lead to a specific beneficial action. 102.Counsel cited the case of Nairobi Law Monthly Company Limited v Kenya Electricity Generating Company & 2 others [2013] KEHC 6054 (KLR) for the proposition that the recognized international standards or principles on freedom of information, which should be included in legislation on freedom of information, includes the principle of maximum disclosure which provides that a requester should not have to show any particular interest or reason for their request; and Katiba Institute v Presidents Delivery Unit & 3 others [2017] KEHC 2183 (KLR) for the proposition that the right to information is not affected by the reason why a citizen seeks information or even what the public officer perceives to be the reason for seeking such information. 103.We hasten to observe that the motive of any person requesting for information pursuant to Article 35 of the Constitution as well as the necessity, purpose or intended use of the information sought is not a valid consideration when determining whether to grant or refuse access under the Access to Information Act. In effect, a public authority or officer cannot lawfully refuse access to information on the basis of misgivings about the citizen’s reasons for requesting access. To our mind, the only lawful basis for refusal of access is a constitutionally permissible limitation specifically falling within the exemptions set out in section 6 of the Act, and justified to the required standard. 104.The proposition that a person need not justify a request for State-held information rests on a fundamental constitutional and statutory insight, namely that the information belongs to the public; that the State holds it as custodian, and not as proprietor; and that, therefore, the burden of justification lies on the State to demonstrate a valid ground for withholding, and not on the citizen to prove an entitlement to receive. Access is the rule; secrecy the exception that must be earned by the State. 105.In English law, the foregoing proposition is commonly referred to as the “motive-blind” or “applicant-blind” principle. In Kenya, this principle finds expression in the unequivocal provision of Article 35 of the Constitution, which does not impose any condition on the citizen's motive or benefit in order to access information held by the State. To our mind, all that the requesting citizen is required to do is to make the request in writing, disclose their identity and describe with sufficient particularity the information sought. 106.Parliament's deliberate omission of any requirement to justify a request encodes the motive-blind principle into the architecture of the Act. Section 4(2) of the Act provides:“4.Right to information(2)Subject to this Act, every citizen's right to access information is not affected by—a.any reason the person gives for seeking access; orb.the public entity's belief as to what the person's reasons are for seeking access”. 107.In Trusted Society of Human Rights Alliance & 3 others v Judicial Service Commission & another; Law Society of Kenya (supra), Odunga, J. (as he then was) correctly held that:“270.Article 35(1)(a) of the Constitution does not seem to impose any conditions precedent to the disclosure of information by the state. I therefore agree with the position encapsulated in The Public’s Right to Know: Principles on Freedom of Information Legislation – Article 19 at page 2 that the principle of maximum disclosure establishes a presumption that all information held by public bodies should be subject to disclosure and that this presumption may be overcome only in very limited circumstances and that public bodies have an obligation to disclose information and every member of the public has corresponding right to receive information. Further the exercise of this right should not require individuals to demonstrate a specific interest in the information. Where therefore a public authority seeks to deny access to information, it should bear the onus of justifying the refusal at each stage of the proceedings ….” 108.We also share the sentiments expressed by the learned Judge in Nairobi Law Monthly Company Limited v Kenya Electricity Generating Company & 2 others (supra) where Mumbi Ngugi, J. (as she then was) correctly held that:“36.The recognized international standards or principles on freedom of information, which should be included in legislation on freedom of information, include maximum disclosure: that full disclosure of information should be the norm; and restrictions and exceptions to access to information should only apply in very limited circumstances; that anyone, not just citizens, should be able to request and obtain information; that a requester should not have to show any particular interest or reason for their request; that ‘Information’ should include all information held by a public body, and it should be the obligation of the public body to prove that it is legitimate to deny access to information.” 109.The international standards alluded to by Mumbi Ngugi, J. (as she then was) were demonstrated in the English case of S v Information Commissioner and the General Register Office (EA/2006/0030, 9 May 2007, Information Tribunal) where the Tribunal observed:“80.We wish to emphasise at this point that the Freedom of Information Act is applicant and motive blind. A disclosure under FOIA is a disclosure to the public [i.e. the world at large]. In dealing with a Freedom of Information request there is no provision for the public authority to look at from whom the application has come, the merits of the application or the purpose for which it is to be used.”(See also Office of Government Commerce v Information Commissioner [2008] EWHC 737 (Admin) where the court held that there is a general presumption in favour of disclosure of State-held information and that the public interest in scrutinising major government decisions is substantial and real.) 110.In the same vein, in Katiba Institute v Presidents Delivery Unit & 3 others (supra), Mwita, J. held that:“32.It is important to note here that the right to information is not affected by the reason why a citizen seeks information or even what the public officer perceives to be the reason for seeking information. This reinforces the fact that Article 35 does not in any way limit the right to access information.” 111.The afore-cited judicial authorities by which we are persuaded are as categorical a statement of the motive-blind principle as enshrined in the Constitution and statute law, not to mention the foundational jurisprudence informed by international standards to which we cannot turn a blind eye in the face of the consistency and clarity with which they have been elucidated. In conclusion, we must point out that public-sector information is available on a "right to know" basis, meaning that members of the public are entitled to it, unless there are good reasons for withholding access. Information in public hands is, after all, the public's information and should be accessible to the public, unless disclosure will cause harm to legitimate government interests or the rights of others. Put differently, the counter-obligation on the State is to either disclose, or demonstrate with specificity that the information falls within a legally recognised exemption, and that the public interest in withholding access thereto outweighs the public interest in disclosure. The motive-blind and burden-reversal principles together constitute the central architecture of the right of access: they ensure that the power to withhold information belongs not to an official who dislikes the requester or suspects their motives, but only to the law as applied by courts in a democratic society. 112.In view of the foregoing, it becomes clear that the 1st and 2nd respondents were by no means obligated to demonstrate to the appellant or to any relevant public officer the necessity or benefits to be served by disclosure of the information sought. Accordingly, the learned Judge was by no means at fault in appreciating that it was not necessary for them to prove any need or beneficial interest to justify disclosure of the information sought. 113.Having carefully considered the record of appeal, the grounds on which it was anchored, the rival submissions of learned counsel, the cited authorities and the law, we reach the inescapable conclusion that the appeal fails and is hereby dismissed in its entirety. Consequently, the judgment of the High Court of Kenya at Mombasa (J. M. Mativo, J.) (as he then was) dated 13th May 2022 be and is hereby upheld. 114.Considering that the instant appeal arose in the course of public interest litigation, we hereby order and direct each party to bear their own costs. DATED AND DELIVERED AT MOMBASA THIS 15TH DAY OF MAY, 2026.A. K. MURGOR…………………………………JUDGE OF APPEALDR. K. I. LAIBUTA CArb, FCIArb.……………………………………JUDGE OF APPEALG. W. NGENYE-MACHARIA………………………………JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR