[2021] KEHC 7531 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

CONSTITUTIONAL & JUDICIAL REVIEW DIVISION

PETITION NO. E005 OF 2020

COMMISSION FOR HUMAN RIGHTS AND JUSTICE............................PETITIONER

1. DR. KHANDWALLA

2. THE BOARD OF MANAGEMENT COAST GENERAL HOSPITAL

3. THE COUNTY EXECUTIVE (COMMITTEE MEMBER

IN CHARGE OF HEALTH COUNTY OF MOMBASA)

4. THE COUNTY GOVERNMENT OF MOMBASA..................................RESPONDENT

JUDGMENT

1. The Petitioner is a Non-Governmental Human Rights Group based in Mombasa. The 1st Respondent is the Chief Executive Officer of Coast General Hospital. The 2nd Respondent is the Board of Management of Coast General Hospital, tasked with the role of overseeing the management of the Coast General Hospital. The 3rd Respondent is the County Executive Committee Member in charge of health within the County Government of Mombasa appointed and designated under the provisions of the County Government Act and the 4th Respondent is the County Government of Mombasa charged with the duty of running the regional government and administrative affairs in Mombasa County.

The Petition

2. In the Petition filed herein dated 22/10/2020, the Petitioner avers that sometime in March 2020, the Chief Executive Officer Coast General Hospital with the approval of the Board of Management of Coast General Hospital without public participation, input from the public and stakeholders involvement, closed and locked the Coast General Hospital entrance on the pretence that they were enforcement of COVID 19 containment measures.

3. It is the Petitioner’s case that the impugned decision was arbitrarily arrived at, and that the said decision inconvenienced the public by denying them access to the said health facility. The petitioner further states that the only open point of entry was purely for emergencies, which inconvenienced members of the public and in particular, persons with disability because they could not access the Hospital without any reasonable difficulty. Therefore, the said decision was tantamount to denying them the right of access to public building and facilities as envisaged under Article 54(c) of the Constitution.

4. The Petitioner avers that despite complaints from the Petitioner and members of the public, the Respondents have refused, ignored, and or neglected to accede to the said demand to the detriment of the greater public interest. The Respondents have also refused, ignored, and/or neglected to respond to the correspondence of 11/9/2020 by the Petitioner hence rendering the instant Petition necessary.

5. It is the Petitioner’s case that the secrecy surrounding the process on how the impugned decision was arrived at amounts to a threat to the provisions of Article 10, 27, 47, 54 (d) and 232 of the Constitution, which provide for national values and principles of public service which bind the Respondents by virtue of being public servants and public bodies established under the relevant Act of parliament. Therefore, the Respondents officials are required to act within the parameters of the law, failure to which their actions become unfriendly to law.

6. The Petitioner states that Article 43 of the Constitution envisages rights to the highest attainable standard of health, which the Respondents should be at the forefront in protecting. Therefore, to restore public confidence on the Respondents, and in the interest of the public, this Court ought to order the re-opening of the main entrance of the Coast General Hospital.

7. The Petitioner prays for the following orders:

a) An order compelling the Respondent to open the main entrance of Coast General Hospital forthwith.

b) Declaration that the Respondents action violate the principle of public participation.

c) An order that the cost of this Petition be borne by the Respondent.

8. The Petition is supported by the affidavit of Julius Ogogoh sworn on 22/10/2020.

The Response

9. The Respondents opposed the Petition vide Replying Affidavit sworn on 1/12/2020 by Dr. Mary Ochola who is the Deputy Chief Executive Officer Coast General Teaching and Referral Hospital. The Respondents denied the allegations made by the Petitioner and stated that it has never shut its doors and/or denied access to anyone who is seeking medical attention at the facility. To the contrary, the Respondents stated that the hospital has been fully operational even during these times of Covid -19, and that the health facility has only denied access to the general visitors or guests to Covid -19 patients, because of the infectious nature of the deceased.

10. The Respondents state that the facility has a conducive entry point to enable members of the public seek medical attention when needed. Therefore, anyone who is desirous of seeking medical attention at the Health Facility can easily access the facility, on condition that they first wash their hands, wear a facemask, and go through a screening stage where their temperature is measured.

Submissions

11. The Petition was canvassed through written submissions. The Petitioners filed submissions on 8/1/2021, while the Respondents filed their submission on 4/2/2021.

12. Mr. MkanLearned Counsel for the Petitioner reiterated the contents of Affidavit Supporting the Petition, and submitted that the Respondents’ closure of the Health Facility’s main entrance has resulted to overcrowding at the emergency gate. Consequently, members of the public have been inconvenienced, particularly persons living with disabilities have experienced hardship and inconveniences when seeking treatment.

13. Counsel further submitted that the Respondents’ response is a mere denial as the main gate is still closed contrary to the averment in the Replying Affidavit. Therefore, the Petitioner has proved that the grievances are genuine, legitimate and the Petitioner has established a prima facie case to warrant the grant of conservatory orders it seeks. Counsel cited the finding in the case of Boardof Management of Uhuru Secondary School vs City County Director of Education & 2 others (2015) eKLR in support of its Application for grant of a conservatory order.

14. Mr. Tajbhailearned counsel for the Respondents submitted that the instant Petition fails to meet the Constitutional threshold and fails to lay out provisions of the Constitution alleged to have been infringed, and how they have been infringed.

15. Mr. Tajbhaisubmitted that there is mechanism set under Section 8 of the Access to Information Act No. 31 of 2016 on how a person can obtain information from a public body, and the mode of applying for the information has been set out. Counsel submitted that the Petitioner herein has not attempted to comply with the provision of the said Act.

16. Mr. Tajbhai further submitted that during this Covid -19 pandemic, Section 13 of the Public Health Act requires the Respondents to take all lawful necessary and reasonably practicable measures for preventing the occurrence; or dealing with any outbreak or prevalence of any infections, to safeguard and promote the public health.

Determination

17. In my view, the following issues arise for determination by this Court.

i.Whether the Respondents violated the Petitioner’s right of access to information

ii. Whether Petitioners social and economic rights under Article 43 and the Rights under Article 54(c) were fringed.

iii. Whether the doctrine of necessity can override the requirement of public participation provided under Article 10 of the Constitution.

18. The Constitution guarantees citizens’ access to information as a Constitutional right and only the same Constitution can limit that access. In that respect, Article 35 of the Constitution stipulates:

1)“Every citizen has the right of access to—

a) information held by the State; and

b) information held by another person and required for the exercise or protection of any right or fundamental freedom.

2) Every person has the right to the correction or deletion of untrue or misleading information that affects the person.

3) The State shall publish and publicise any important information affecting the nation.

19. To actualize Article 35, parliament enacted Access to Information Act 2016. Section 4 of the Act, relevant, to this Petition, provides for the procedure to access information. The section provides;

1)“Subject to this Act and any other written law, every citizen has the right of access to information held by—

a) the State; and

b) another person and where that information is required for the exercise or protection of any right or fundamental freedom.

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; or

b) the public entity's belief as to what are the person's reasons for seeking access.

3) Access to information held by a public entity or a private body shall be provided expeditiously at a reasonable cost.

4) This Act shall be interpreted and applied on the basis of a duty to disclose and non-disclosure shall be permitted only in circumstances exempted under section 6.

5) Nothing in this Act shall limit the requirement imposed under this Act or any other written law on a public entity or a private body to disclose information. (emphasis)

20. Limitation of right of access to information

(1)Pursuant to Article 24 of the Constitution, the right of access to information under Article 35 of the Constitution shall be limited in respect of information whose disclosure is likely to—

(a) undermine the national security of Kenya;

(b) impede the due process of law;

(c) endanger the safety, health or life of any person;

(d) involve the unwarranted invasion of the privacy of an individual, other than the applicant or the person on whose behalf an application has, with proper authority, been made;

(e) substantially prejudice the commercial interests, including intellectual property rights, of that entity or third party from whom information was obtained;

(f) cause substantial harm to the ability of the Government to manage the economy of Kenya;

(g) significantly undermine a public or private entity's ability to give adequate and judicious consideration to a matter concerning which no final decision has been taken and which remains the subject of active consideration;

(h) damage a public entity's position in any actual or contemplated legal proceedings; or

(i) infringe professional confidentiality as recognized in law or by the rules of a registered association of a profession.

21. A citizen who wants to access information should do so in writing with sufficient details and particulars to enable the public officer understand what information is being requested. The Act is also sufficiently clear that the information should be given without delay and at no fee. Section 8 of the Act on Application for Access of Information stipulates:

(1) An application to access information shall be made in writing in English or Kiswahili and the applicant shall provide details and sufficient particulars for the public officer or any other official to understand what information is being requested.

(2) Where an applicant is unable to make a written request for access to information in accordance with subsection (1) because of illiteracy or disability, the information officer shall take the necessary steps to ensure that the applicant makes a request in manner that meets their needs.

(3) The information officer shall reduce to writing, in a prescribed form the request made under subsection (2) and the information officer shall then furnish the applicant with a copy of the written request.

(4) A public entity may prescribe a form for making an application to access information, but any such form shall not be such as to unreasonably delay requests or place an undue burden upon applicants and no application may be rejected on the ground only that the applicant has not used the prescribed form.

22. Once such an application has been made, provision is made at Section 9 of the manner in which this information is to be processed. That Section 9 provides as follows:

“(1) Subject to section 10, a public officer shall make a decision on an application as soon as possible, but in any event, within twenty one days of receipt of the application.

(2) Where the information sought concerns the life or liberty of a person, the information officer shall provide the information within forty-eight hours of the receipt of the application.

(3) The information officer to whom a request is made under subsection (2) may extend the period for response on a single occasion for a period of not more than fourteen days if—

(a) the request is for a large amount of information or requires a search through a large amount of information and meeting the stipulated time would unreasonably interfere with the activities of the information holder; or

(b) Consultations are necessary so as to comply with the request and the consultations cannot be reasonably completed within the stipulated time.

(4) As 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—

(a) whether or not the public entity or private body holds the information sought;

(b) whether the request for information is approved:

(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; and

(d) if the request is declined, a statement about how the requester may appeal to the Commission"; (Emphasis given)

(5) A public officer referred to in subsection (1) may seek the assistance of any other public officer as the first mentioned public officer considers necessary for the proper discharge of his or her duties and such other public officer shall render the required assistance.”

(6) Where the applicant does not receive a response to an application within the period stated in subsection (1), the application shall be deemed to have been rejected

23. The Petitioner herein sought information through letter dated 11/9/2020. The letter was received by the 4th Respondent on 14/9/2020. However, no response was received from the Respondents. This prompted the Petitioner to file this Petition.

24. The Petitioner avers that the Respondents have violated Articles 10, 35, 54 and 232 of the Constitution. The Respondents on the other hand hold the position that they did not violate any of the Petitioner’s rights. The Respondents also contended that any measure taken by the Health Facility is to ensure that the general public is protected and social distance is adhered to in order to avoid the wide spread of Covid -19.

25. In Katiba Institute v Presidents Delivery Unit & 3 others [2017] eKLRthe Court held as follows:

“The right to access information is a right that the individual has to access information held by public authorities acting on behalf of the state. This is an important right for the proper and democratic conduct of government affairs, for this right enables citizens to participate in that governance. For instance, successful and effective public participation in governance largely depends on the citizen’s ability to access information held by public authorities. Where they don’t know what is happening in their government and or if actions of those in government are hidden from them, they may not be able to take meaningful part in their country’s governance. In that context, therefore, the right to access information becomes a foundational human right upon which other rights must flow. And for citizens to protect their other rights, the right to access information becomes critical for any meaningful and effective participation in the democratic governance of their country.”

26. In the case ofTrusted Society of Human Rights Alliance & 3 Others v Judicial Service Commission [2016] eKLR,the Court reaffirmed the position that the Constitution does not limit the right to access information when it stated;

“[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”.

27. I have perused the Petition, the Supporting Affidavit sworn on 22/10/2020, and the Replying Affidavit sworn 1/12/2020. The letter seeking information from the Respondents was written on 11/9/2020 and delivered on the 14/9/2020. No response was received by the Petitioner. Section 9 (1) of the Act states that the state or state organs should give information within 21 days or respond to the request within that period.

28. Of great significance in this enactment is sub-section (6) which provides as follows:

“(6) Where the applicant does not receive a response to an application within the period stated in subsection (1), the application shall be deemed to have been rejected.”

29. Clearly the Act provides a comprehensive mechanism through which a citizen should apply for and obtain information from the state or other public body. Where information is denied, then the public body is duty bound, by the provisions of Section 9 (d) to provide the applicant, in that Section called “the requester” with a comprehensive statement to enable “requester” make an appeal “to the Commission”.

30. Section 2 of the Act defines the term Commission to mean:

“the Commission on Administrative Justice established by Section 3 of the Commission on Administrative Justice Act, No. 23 of 2011. ”

31. Apart from complaints to the Commission, which are provided for in Part III of the Act, Part IV of that Act provides for review of Decisions by the Commission. By Section 14 of that Part, provision is made as follows:

(1) Subject to subsection (2), an applicant may apply in writing to the Commission requesting a review of any of the following decisions of a public entity or private body in relation to a request for access to information—

(a) a decision refusing to grant access to the information applied for;

(b) a decision granting access to information in edited form;

(c) a decision purporting to grant access, but not actually granting the access in accordance with an application;

(d) a decision to defer providing the access to information;

(e) a decision relating to imposition of a fee or the amount of the fee;

(f) a decision relating to the remission of a prescribed application fee;

(g) a decision to grant access to information only to a specified person; or

(h) a decision refusing to correct, update or annotate a record of personal information in accordance with an application made under section 13.

(2) An application under subsection (1) shall be made within thirty days, or such further period as the Commission may allow, from the day on which the decision is notified to the applicant.

(3) The Commission may, on its own initiative or upon request by any person, review a decision by a public entity refusing to publish information that it is required to publish under this Act.

Again to underscore the necessity of meticulously following this enactment, sub-section (4) of that Section provides as follow:

(4) The procedure for submitting a request for a review by the Commission shall be the same as the procedure for lodging complaints with the Commission stipulated under section 22 of this Act or as prescribed by the Commission.

32. It is clear the manner of complaining against any unfavourable decision of the Commission has been given. The manner of applying for Review of a decision of the Commission has also been provided for. These procedural requirements have all been flouted, if not forgotten by the Petitioner herein, and it cannot now purport that their rights to information under Article 35 of the Constitution has been denied.

33. InSpeaker of National Assembly v Hon. James Njenga Karume (2008) 1 KLR 425,the Court of Appeal held that:-

“Where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament that procedure should be strictly followed”.

…

We hold that if indeed the appellant had any dispute with the RBA, he ought to have followed the route prescribed by the RBA, before proceeding to the High Court. We hold like the Court below, and for the reasons we have given, that the appellant’s Petition lacked merit and was for dismissal.”

34. In this matter, the Petitioner failed to follow the laid down procedure as stipulated in the Access to Information Act No. 31 of 2016, and therefore the Court has no Jurisdiction to determine the Petition and the application before it.

Whether Petitioners social and economic rightsunder Article 43 and the Rights under Article 54(c) were fringed.

35. The Petitioner vide affidavit sworn on 19/10/2020 by Raphael Odieny Wakayawho is a person living with disability stated that the closure of the health facility main gate made him struggle to reach the said emergency entry gate, and on reaching the said gate, the same was overcrowded. Owing to the said situation, he was not able to access the health facility and therefore he went home without being treated. On the part of the Respondents, it is averred that any measures taken by the health care facility is to ensure that the general public is protected and the spread of the Covid -19 virus is contained. However, any person who is desirous of seeking medical attention can easily access the facility.

36. Looking at the general duties of health authorities, Section 13 of the Public Health Act, stipulates as follows:

“13. It shall be the duty of every health authority to take all lawful, necessary and, under its special circumstances, reasonably practicable measures for preventing the occurrence or dealing with any outbreak or prevalence of any infectious, communicable or preventable disease, to safeguard and promote the public health and to exercise the powers and perform the duties in respect of the public health conferred or imposed on it by this Act or by any other law”.

37. In my view, and in the circumstances of this case, the Respondent applied the precautionary principle established in Republic v Ministry & 3 Others Ex-Parte Kennedy Amdany Langat & 27 Others [2018] eKLR as follows:

“126. Therefore, applying the precautionary principle, which principle is designed to prevent potential risks, I find and hold that it is the duty of the state to take protective measures without having to wait until the reality and seriousness of those risks are fully demonstrated or manifested. This approach takes into account the actual risk to public health, especially where there is uncertainty as to the existence or extent of risks to the health of consumers. The state may take protective measures without having to wait until the reality and the seriousness of those risks are apparent.”

It was further held that: -

“128. At the core of this precautionary principle are many of the attributes of public health practice including a focus on primary prevention and a recognition that unforeseen and unwanted consequences of human activities are not unusual.

“129. Additionally, where, in matters of public health, it proves impossible to determine with certainty the existence or extent of the alleged risk because of the insufficiency, inconclusiveness or imprecision of the results of studies conducted as was alleged by the applicants in this case, but the likelihood of real harm to public health persists should the risk materialise, the precautionary principle justifies the adoption of restrictive measures, provided they are non-discriminatory and objective.”

38. The Respondents in their Response at paragraph 5, 6, 9 and 10, have highlighted all the precautionary measures that will be undertaken in ensuring the Coast General Hospital is safe to not only the Petitioner but also the general residents of Mombasa and the Covid-19 patients.

39. In my view, the Respondents in setting up the aforementioned measures which include ensuring washing of hand, wearing of face masks and the screening of temperature, is ensuring that the Petitioner’s rights as enshrined in Article 43 of the Constitution, the right to highest attainable standard of health, is protected. The Petitioners should therefore be embracing this initiative instead of opposing it.

Violation of Article 54 of the Constitution

40. Article 54 makes specific provisions for the application of the rights of persons with disability and it provides as follows;

54. (1) A person with any disability is entitled –

(a) to be treated with dignity and respect and to be addressed and referred to in a manner that is not demeaning;

(b) to access educational institutions and facilities for persons with disabilities that are integrated into society to the extent compatible with the interests of the person;

(c) To reasonable access to all places, public transport and information;

(d) to use sign language, Braille or other means of communication;

(e) to access materials and devices to overcome constraints arising from the person’s disability.

41. On the issue of violation of the rights guaranteed under Article 54(1) of the Constitution, Section 107(1) of the Evidence Act, Cap 80 Laws of Kenya provides:

“whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts actually exists; sub-section (2) thereof provides that – ‘when a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”

42. In Kiambu County Tenants Welfare Association v Attorney General & another [2017] eKLRthe Court observed that: -

“…Courts have over the years established that for a party to prove violation of their rights under the various provision of the Bill of Rights they must not only state the provisions of the Constitution allegedly infringed in relation to them, but also the manner of infringement and the nature and extent of that infringement [14] and the nature and extent of the injury suffered(if any).

…To my mind the burden of establishing all the allegations rests on the Petitioner who is under an obligation to discharge the burden of proof. All cases are decided on the legal burden of proof being discharged (or not). Lord Brandon in Rhesa Shipping Co SA vs Edmunds [15] remarked:-

“No Judge likes to decide cases on the burden of proof if he can legitimately avoid having to do so. There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course to take.”

Whether one likes it or not, the legal burden of proof is consciously or unconsioulsy the acid test applied when coming to a decision in any particular case. This fact was succinctly put forth by Rajah JA in Britesone Pte Ltd vs Smith & Associates Far East Ltd [16]:-

“The Court’s decision in every case will depend on whether the party concerned has satisfied the particular burden and standard of proof imposed on him”

With the above observation in mind, the starting point is that whoever desires any Court to give judgment as to any legal right or liability, dependent on the existence of fact which he asserts, must prove that those facts exist. The burden of proof in a suit or proceedings lies on that person who would fail if no evidence at all were given on either side. The burden of proof as to any particular fact lies on that person who wishes the Court to believe its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

The standard determines the degree of certainty with which a fact must be proved to satisfy the Court of the fact. In civil cases the stand of proof is the balance of probabilities. In the case of Miller vs Minister of Pensions. [17] Lord Denning said the following about the standard of proof in civil cases:-

‘The ...{standard of proof} …is well settled. It must carry a reasonable degree of probability…if the evidence is such that the tribunal can say: ‘We think it more probable than not’ the burden is discharged, but, if the probabilities are equal, it is not.”

43. From the foregoing, I find that other than the allegations of overcrowding at the emergency exit thereby subjecting persons living with disability to some difficulty, the Petitioner has not demonstrated to this Court any violation of the articles of the constitution cited in the petition.

Whether the doctrine of necessity can override the requirement of public participation provided under Article 10 of the Constitution.

44. This Court takes judicial notice that the impugned decision by the Respondents was as a result of the Covid -19 Pandemic, which did not give the world notice of its arrival. Therefore, the Respondents had to act within powers granted to them under Section 13 of the Public Health Act to ensure that the spread of the Covid -19 virus is contained. Consequently, the normal Constitutional requirements could not be met when programmes were put in place to fight Covid-19 pandemic.

45. From the foregoing, I find and hold that the doctrine of necessity can be used to justify a situation, which under ordinary conditions cannot be allowed. In my view, Covid-19 pandemic is a perfect situation, which would warrant deviation from the normal.

46. Courts have dealt with the concepts of public participation and stakeholders’ consultation or engagement. The High Court in Robert N. Gakuru & Others vs. Governor Kiambu County & 3 Others [2014] eKLR while referring to the South African decision in Doctors for Life International vs. Speaker of the National Assembly & Others (CCT12/05) [2006] ZACC 11; 2006 (12) BCLR 1399 (cc); 2006(6) SA 416 (CC) adopted the following definition of public participation: -

“According to their plain and ordinary meaning, the words public involvement or public participation refers to the process by which the public participates in something. Facilitation of public involvement in the legislative process, therefore, means taking steps to ensure that the public participate in the legislative process.”

47. Public participation therefore refers to the processes of engaging the public or a representative sector while developing laws and formulating policies that affect them. The processes may take different forms. At times, it may include consultations. The Black’s Law Dictionary 10th Edition defines ‘consultation’ as follows: -

The act of asking the advice or opinion of someone. A meeting in which parties consult or confer.

48. The Petitioner has alleged that there was no public participation in the decision and closure of the main entrance of the said health facility. In my view, and applying the doctrine of necessity above, there was no time to engage the Petitioner or the public on public participation in the making of the impugned decision. However, the Respondents were obligated, and they appreciated this obligation, to explain to the public what they were doing and the possible health consequences of their action.

49. In the upshot, I find and hold that the Petition herein was not proved as required by the law, lacks merit and the same is herewith dismissed. Parties shall bear their own costs.

DATED, SIGNED AND DELIVERED AT MOMBASA THIS 19TH DAY OF APRIL, 2021.

E. K. OGOLA

JUDGE

Judgment delivered via MS Teams in the presence of:

Mr. Tajbhai for 1st Respondent

No appearance for Petitioner

Ms. Peris Court Assistant