[2022] KEHC 3239 (KLR)

Kithinji v Independent Electoral and Boundaries Commission & 3 others; Ethics & Anti-corruption Commision & another (Interested Party) (Constitutional Petition E005 of 2022) [2022] KEHC 3239 (KLR) (14 July 2022) (Ruling)

Neutral citation: [2022] KEHC 3239 (KLR)

Republic of Kenya

In the High Court at Meru

Constitutional Petition E005 of 2022

EM Muriithi, J

July 14, 2022

IN THE MATTER OF THE CONTRAVENTION OF FUNDAMENTAL RIGHTS & FREEDOMS AS ENSHRINED UNDER ARTICLES 10(1) & (2), 19(1), 20(1), 22(1), 23, 75(1), 159,165 AND 258 OF THE CONSTITUTION AND IN THE MATTER OF ARTICLES 38, 75, 180 AND 193 OF THE CONSTITUTION IN THE MATTER OF CHAPTER SIX OF THE CONSTITUTION ON LEADERSHIP AND INTEGRITY AND IN THE MATTER OF RULES 20 AND 21 OF THE CONSTITUTION OF KENYA SUPERVISORY JURISDICTION AND THE PROTECTION OF FUNDAMENTAL RIGHTS AND THE FREEDOM OF THE INDIVIDUAL AND IN THE MATTER OF THE VIOLATION OF SECTION 22(2) OF THE ELECTIONS ACT, 2011 AND IN THE MATTER OF VIOLATION AND/OR INFRINGEMENT OF THE FUNDAMENTAL RIGHTS OF THE PETITIONER AND IN THE MATTER OF THE CONSTITUTION OF KENYA, PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS, PRACTICE AND PROCEDURAL RULES

Between

Dickson Mwenda Kithinji

Petitioner

and

Independent Electoral and Boundaries Commission

1st Respondent

Returning Officer, Meru County

2nd Respondent

Kawira Mwangaza

3rd Respondent

Isaac Mutuma M’ethingia

4th Respondent

and

Ethics & Anti-corruption Commision

Interested Party

Director of Criminal Investigations

Interested Party

Ruling

1. The Court has considered the application by the Petitioner/Applicant dated 6/7/2022 seeking principally the compulsion of the 3rd and 4th Respondents to provide documents to wit; University admission documents; transcripts for all the years learnt; statements in respect to the school fees paid over the years; class attendance schedules; university academic research papers/ projects for the finalists; duly filled logbook for the academic attachment undertaken upon completion of the classwork; and any relevant mandatory requirements for University Bachelor’s Degree Education; and leave to cross examine the 3rd and 4th Respondents during the hearing of the Petition.

2. The application is premised on Articles 2(1), 10 and 35 of the Constitution, sections 4, 5, 8, 9 and 10 of the Access to Information Act, section 3 & 3A of the Civil Procedure Act and Rule 19 of the Constitution of Kenya(Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. The Court has equally considered the Notice of production of documents by the 3rd and 4th Respondents dated 22/6/2022 filed by the Petitioner. The documents sought to be produced are application for the degree course undertaken by the 3rd and 4th Respondents; KCSE certificates for the 3rd and 4th Respondents; letters of admission from the Universities for the 3rd and 4th Respondents; Evidence of registration including student identity card numbers for the 3rd and 4th Respondents; course description for the 3rd and 4th Respondents’ degrees; course outlines for the courses undertaken by 3rd and 4th Respondents; course units undertaken by the 3rd and 4th Respondents; transcripts related to the 3rd and 4th Respondents’ degree; examinations schedules related to the 3rd and 4th degrees; graduation booklets that have names of the 3rd and 4th Respondents; receipts for the application fees, tuition fees, graduation and convocation, names of lecturers that taught her/him some of the courses, any communication with the university staff(academic and administrative) regarding her/his course in the university, graduation photo while wearing the gown and evidence of the requisite credit hours covered.

3. The petitioner orally submitted that the right to access to information under Article 35 of the Constitution is a right which cannot be limited, as the same is couched in mandatory terms. He asserts that the documents sought to be produced are within the possession of the 3rd and 4th Respondents, and the 3rd and 4th Respondents would suffer no prejudice if the orders sought are granted.

4. On prayer 3, the Petitioner submitted that there were conflicting documents on record from the same institution produced by both parties whose authenticity could only be tested on cross examination of the 3rd and 4th Respondents.

5. The 3rd and 4th Respondents have filed grounds of opposition and skeleton submissions dated 12/7/2022, alleging that they are private individuals who are excluded by the provisions of Access to Information Act in providing information for the benefit of the Applicant. They allege that the onus of proof is on the Applicant to prove that they do not possess valid degree certificates. They also relied on the provisions of Articles 31, 35 and 50(2)(i) and sections 6(1)(d), 7- 13 of the Access to Information Act. They allege that the prayer for leave to cross examine them is unjustified because the documents sought to be produced are within the purview of public bodies, and urge the court to dismiss the application with costs. They urge that verification of the documents has already been done and the people who ought to be cross examined are the different bodies which did the verification.

Analysis and Determination 6. Section 69 of the Evidence Act provides for notice to produce a document as follows:-“Secondary evidence of the contents of the documents referred to in section 68 (1) (a) of this Act shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, or to his advocate, such a notice to produce it as is required by law or such notice as the court considers reasonable in the circumstances of the case: Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases— (i) when the document to be proved is itself a notice; (ii) when from the nature of the case, the adverse party must know that he will be required to produce it; (iii) when it appears or is proved that the adverse party has obtained possession of the original by fraud or force; (iv) when the adverse party or his agent has the original in court; (v) when the adverse party or his agent has admitted the loss of the document; (vi) when the person in possession of the document is out of reach of, or not subject to, the process of the court; (vii) in any other case in which the court thinks fit to dispense with the requirement.”

7. The import of a Notice to produce is to notify the holder of the primary evidence that if they do not produce the said evidence, the person giving the notice will proceed to produce secondary evidence in his possession in line with the provisions of section 68 of the Evidence Act. That Section as follows:-“(1) Secondary evidence may be given of the existence, condition or contents of a document in the following cases— (a) when the original is shown or appears to be in the possession or power of— (i) the person against whom the document is sought to be proved; or (ii) a person out of reach of, or not subject to, the process of the court; or (iii) any person legally bound to produce it, and when, after the notice required by section 69 of this Act has been given, such person refuses or fails to produce it; (b) when the existence, condition or contents of the original are proved to be admitted in writing by the person against whom it is proved, or by his representative in interest; (c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in a reasonable time; (d) when the original is of such a nature as not to be easily movable; (e) when the original is a public document within the meaning of section 79 of this Act; (f) when the original is a document of which a certified copy is permitted by this Act or by any written law to be given in evidence; (g) when the original consists of numerous accounts or other documents which cannot conveniently be examined in court, and the fact to be proved is the general result of the whole collection. (2) (a) In the cases mentioned in paragraphs (a), (c) and (d) of subsection (1), any secondary evidence of the contents of the document is admissible. (b) In the case mentioned in paragraph (b) of subsection (1) of this section, the written admission is admissible. (c) In the cases mentioned in paragraphs (e) and (f) of subsection (1) of this section, a certified copy of the document, but no other kind of secondary evidence, is admissible. (d) In the case mentioned in paragraph (g) of subsection (1) of this section, evidence may be given as to the general result of the accounts or documents by any person who has examined them, and who is skilled in the examination of such accounts or documents.”

8. That is not the purpose sought to be served by the Petitioner’s application and Notice of Production. The Petitioner is in a fishing expedition in search of evidence to support his petition. It is not disputed that Article 35 of the Constitution provides that“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.”

9. The Court agrees that such information as would be required for the exercise or protection of any right and fundamental freedom may be required from any person. The Petitioner has not however, demonstrated that the information sought is necessary for the protection of any right or fundamental freedom. In addition the information must be shown to be held by the person from whom it is sought. In the two decisions of the court relied on by the Petitioner, Oracle Productions Limited v. Decapture Limited & 3 Ors. [2014] eKLR where a motion for discovery was granted and Katiba Institute v. Presidents Delivery Unit & 3 Ors [2017] eKLR where an order for mandamus to supply information on advertisement and costs thereof by the President’s Delivery Unit was made, the respondents were established to have been in possession of the information sought.

10. The petitioner has failed to establish that the 3rd and 4th Respondents are in possession of the documents sought to be produced.

11. The court has seen 2 certificates of qualification verification by Kenya National Qualifications Authority confirming that the 3rd Respondent’s Bachelor of Education with Guidance and Counseling from Kampala University and Bachelor of Arts in Transformational Church Leadership from Pan Africa Christian University, are authentic. The Court has also looked at the Recognition and Equation of Qualifications by Commission for University Education confirming that Kampala International University and Pan Africa Christian University, where the 3rd Respondent studied her Bachelor of Education with Guidance and Counseling (Arts) and Bachelor of Arts in Transformational Church Leadership, are recognized institutions in Uganda and Kenya respectively. There is also a letter dated 17/2/2022 from Kampala International University confirming that the 3rd Respondent indeed attended the said institution and completed her studies on 11th November 2011. The court considered the 4th Respondent’s Higher Diploma in Forensic Psychology and Criminology from Kenya Institute of Studies in Criminal Justice.

12. The court notes the contents of the letter dated 5/4/2022 from Kampala International University where it is indicated that the 3rd Respondent enrolled as a student in that institution but she had not completed her course units in order to be conferred with a Bachelor of Education in Guidance and Counseling. The 3rd Respondent is not the maker of any of the documents relied on, and it is only the concerned institutions which can verify the authenticity or otherwise of such documents. Moreover, that letter is not affidavit deponed on oath, but just a letter. There is no Affidavit from the University indicating that the degree is not authentic.

Leave to cross examine the 3rd and 4th Respondents 13. The petitioner in his oral submissions sought that the petition be heard orally and he be granted leave to cross examine the 3rd and the Respondents during the hearing of the Petition. It is clear that the 3rd and 4th Respondents did not swear any affidavit, thus there is no basis upon which they can be cross examined. In any event, the 3rd and 4th Respondents are not the makers of the documents sought to be produced and therefore they cannot possibly be cross examined on the same. It is factual that university documents are issued by learning institutions and if any substantiation were to be sought, the same would only be done by the said institutions.

14. It is trite that the legal burden of proof in a case is always rests on the claimant throughout the trial and the evidential burden of proof only shift in well-known circumstances upon establishment of a prima facie case. Sections 107 and 108 of the Evidence Act.

15. The Court has discretion under Rule 20 (3) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules [Mutunga Rules] on application or on its own motion to order oral hearing wholly or partly. In the circumstances of this case, the prayer for the petition to be heard orally cannot issue due to time constraints in this case only about 3 weeks to the General Election for which there is need to print ballot papers and other necessary documents. Besides, the court considers that the issues raised herein can properly be determined by way of affidavit evidence and submissions.

Orders 16. In conclusion, this Court finds the application dated 6/7/2022 together with the Notice of Production of documents dated 22/6/2022, are not merited, and the same are dismissed. Costs in the cause.Order accordingly.

DATED AND DELIVERED THIS 14THDAY OF JULY 2022. EDWARD M. MURIITHIJUDGEAPPEARANCES:Mr. Mutegi with Mr. Maranya for Petitioner.Mr. Ochieng with Mr. C. Mwongela for the 1 & 2 Respondents.Mr. Mr. Munene with Mr. Mwirigi and Mr. Ngentu for the 3rd and 4th Respondents.