[2022] KEHC 174 (KLR)

Motress Limited & Mdalu Mrabu Mdalu v Kenya National Highways Authority (KENHA) & 3 others (Petition 40 of 2020) [2022] KEHC 174 (KLR) (8 March 2022) (Ruling)

Neutral citation number: [2022] KEHC 174 (KLR)

Republic of Kenya

In the High Court at Mombasa

Petition 40 of 2020

JM Mativo, J

March 8, 2022

Between

Motress Limited & Mdalu Mrabu Mdalu

Petitioner

and

Kenya National Highways Authority (KENHA)

1st Respondent

Attorney General

2nd Respondent

Director of Public Prosecution

3rd Respondent

The Surbordinate Court, PM’S Court-Mariakani

4th Respondent

Ruling

1. In order to put the Petitioner’s application dated 9th April 2021 the subject of this ruling into a proper perspective, it is necessary to highlight, albeit briefly, the Petitioner’s case as gleaned from their Petition dated 11th June 2020.

2. The gist of the Petitioners’ case is that on 6th June 2020 the 1st Respondent detained the 2nd Petitioner’s motor vehicle KBR 758D 9414 which was loaded with its customers goods and served the 2nd Petitioner with Notice to Attend court on 12th June 2020 to answer charges of driving the said motor vehicle on a public road with greater load contrary to section 56 (1) of the Traffic Act.1 The Petitioners state that the offence was committed on 3rd February 2020, and, the said charge is driven by malice and it violates the Petitioners’ rights. The Petitioners contend that the same vehicle was weighed at various points and found to be carrying the correct weight. The 1st Petitioner contends that the continued detention of the said vehicle is causing it loss and damages. As a consequence, the Petitioners pray that this court declares that the detention of the vehicle and the prosecution are against their constitutional rights. They also pray for orders of certiorari, prohibition; and release of the said vehicle. Lastly, they pray for costs of this Petition.1Cap 403, Laws of Kenya.

3. Vide the application dated 9th April 2021, the subject of this ruling, the Petitioners/applicants pray that the 1st Respondent be compelled to produce the following documents to this court which are in its possession and control: -a.The Certificate of verification for the static weighbridges at Mariakani, Eldoret-Webuye and Subukia-Kikuyu for the years 2019, 2020 and 2021. b.The approval Certificates for the virtual weighbridges at Kaloleni, Eldoret-Webuye and Subukia-Kikuyu for the years 2019, 2020 and 2021. c.The Certificates of Verification for the virtual weighbridges at Kaloleni, Eldoret-Webuye and Subukia-Kikuyu for the years 2019,2020 and 2021. d.The virtual tickets from the Kaloleni Virtual Weigbridge for Motor vehicle Registration No. KCF 277M on 19th March 2021 at 11:32am; Motor Vehicle Registration No, KCR 043Z on 19th March 2021 at 11:39 am; Motor Vehicle Registration No. KBK 011E on 19th March 2021 at 11:39am.e.The static tickets from the Mariakani Weighbrdge for 19th March 2021 for motor vehicles Registration Nos. KCF 277M, KCR 043 Z and KBK 011E for 19th March 2021.

4. The Petitioners/applicants also pray that this court summons a one Julius Nyamu, the County Weights & Measures Officer, Kilifi to testify before the court. Lastly, the Petitioners pray for costs to be provided for.

5. The application is founded on grounds listed on the face of the application and the annexed supporting affidavit of Iqbal Ahmed Bayusuf. The core grounds are that the 1st Respondent is the custodian of the documents sought; that this Petition has taken the shape of a public nature since the decision will affect the Petitioners’ vehicles as well as other transport companies in the country; that it is in the best interests of justice that the orders sought be granted. Lastly, that the Respondents will not suffer any prejudice if the orders are granted.

6. The application is opposed. On record is the Replying affidavit of Denis Cheruiyot dated 28th September 2021, a roads inspector at the Kenya National Highways Authority. The salient points in opposition to the application are:- (a) that the application is defective and it is based on irrelevant provisions of the law; (b) that the application seeks to fish information; (c) that the Petitioner seeks to amend his Petition; (d) that the Petition relates to motor vehicle KBR 785 ZD 9414 and not the vehicles numbers KCF 277M, KCR 043Z and KBK 011E which are not the subject of this Petition and no nexus has been drawn between this suit and the said vehicles; (e) that the Petitioners ought to have requested the information from the Respondent as provided by Article 35 of the Constitution and the Access to Information Act;2 (f) the vehicles registration numbers KCF 227 M, KCR 043Z and KBK 011E are unrelated to this suit; (g) that the time lines for the information sought are unrelated to the offence committed by KBR 785D ZD 9414; (h) that the Petition does not qualify to be a public interest matter; (i) that the Petition has failed to demonstrate the nexus between the information sought and the remedies sought in this Petition; and, (j) that the Respondents stands to suffer prejudice.2Act No. 31 of 2016.

7. The 2nd to 4th Respondents did not file any responses to the Petition nor did they participate in the proceedings.

8. In his submissions, the Petitioners’ counsel argued that the applicable statute in this case is the Weights and Measures Act.3 He submitted that it is necessary that the Certificate of Verification for the static weighbridges and virtual weighbridges as well as the approval certificates to be supplied. He submitted that Mr. Julius Nyamu, the County Weighs & Measures, Kilifi County is the proper person to interpret the documents, explain and verify the certificates. He argued that the Respondent has not denied that the said information is within their knowledge. Also, he argued that the Petitioners will be prejudiced if the information is not provided. To buttress his argument, counsel cited Article 35 of the Constitution and section 4 of the Access to Information Act.4 He argued that the applicants need not give reasons why the information is required he relied on Katiba Institute v Presidents Delivery Unit & 3 others.53Cap 513, Laws of Kenya.4Act No. 31 of 2016. 5{2017} e KLR.

9. In his submissions, the Respondents’ counsel took issue with the relevancy of the provisions of the law upon which the application is founded arguing that the provisions relate to supplemental proceedings and application for an account which do not arise from the issues in this case.

10. He cited Article 35 of the Constitution and section 3 of the Access to Information Act6 which provides the objects of the Act and section 8 which details the process for requesting for information. He faulted the Petitioner for failing to invoke the procedure prescribed under section 8 of the Access to Information Act.7 He argued that no application for request for information was ever made to the 1st Respondent and cited Geoffrey Muthinja Kabiru & 2 others v Samuel Munga Henry & 1756 others8 in support of the proposition that where a statute establishes a dispute resolution mechanism, it ought to be adhered to. Also, he cited Kawuki Mathias v The Commissioner General, Uganda Revenue Authority9which underscored the need for parties to exhaust the procedures established by statutes and submitted that the mechanism provided by the statute is the Commission of Administrative Justice. He argued that the instant application is pre-mature.6Act No. 31 of 2016. 7Act No. 31 of 2016. 8{2015} e KLR.9High Court Miscellaneous Application Cause No. 14 of 2014 (UGCOMMMC 67).

11. He also argued that the information sought does not relate to the instant Petition and that the issues raised in this case are matters which can be canvassed in the traffic case in the lower court. Lasty, he submitted that these proceedings cannot be classified as public interest proceedings as argued by the Petitioner. He relied on Brian Asin & 2 others v Wafuka W. Chebukati & 9 others10 which defined what constitutes public interest litigation.10{2017} e KLR.

12. A useful starting point in resolving the issue raised in this application and the diametrically opposed submissions tendered by the parties is to accentuate that before me is a constitutional Petition expressed under the provisions of Articles 1, 2, 10, 22, 26, 39, 40 and 43 of the Constitution and section 4 and 5 of the Fair Administrative Actions Act.11 Granted, constitutional Petitions are governed by the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 201312promulgated pursuant to Article 22 (3) of the Constitution.11Act No. 4 of 2015. 12Legal Notice No. 117 of 2013.

13. In the instant application, the Petitioners invoked the provisions of the Civil Procedure Act13and the Civil Procedure Rules, 2010 in a constitutional Petition. They cited sections 1A, 1B, 3, 3A and 63 (e) of the Civil Procedure Act.14 If the Petitioners desired to invoke the inherent powers of this court, then that is expressly provided in Rule 3 (8) of the the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 201315 which provides that “Nothing in these rules shall limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.”13Cap 21, Laws of Kenya.14Cap 21, Laws of Kenya.15Legal Notice No. 117 of 2013.

14. The drafters of the Constitution included in the Bill of Rights the right to access to information at Article 35. To operationalize the said Article, Parliament enacted Access to Information Act.16 It’s not clear why the Petitioners did not anchor their application on this Article and the provisions of the Access to Information. Instead, they relegated the provisions of Access to information Act to their submissions. With such clear provisions of the Constitution and an act of Parliament whose object is to give effect to Article 35 of the Constitution, it is not clear why the Petitioners opted to invoke irrelevant provisions of the Law. Also, the Petitioners invoked Order 20 Rules 2, 3 and 4 of the Civil Procedure Rules, 2010. These provisions deal with application for an account. The issues raised in the instant Petition have nothing to do with accounts. They have everything to do with Section 55 of the Traffic Act which provides that:-16Act No. 31 of 2016. (2)No motor vehicle the weight or dimensions of which laden or unladen exceeds the maximum weight or dimensions provided for such vehicles by rules made under this Act shall be used on a road.

15. Additionally, section 22 of the Kenya Roads Act17 vests powers to the Kenya National Highways Authority to (c) to measure and assess the weights, dimensions and capacities of vehicles using any road and provide measures to ensure compliance with rules relating to axle load control, other provisions of the Traffic Act and any regulations under the Act.17Act No. 2 of 2007.

16. The scope and objectives of the the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 201318is stated in Rule 3 (1) which provides that “these rules shall apply to all proceedings made under Article 22 of the Constitution.” There is no justifiable basis for invoking the Civil Procedure Act and Rules. The drafters of the rules in their wisdom deployed the word “shall” in the above provision which connotes a mandatory provision.18Legal Notice No. 117 of 2013.

17. Despite the above finding, I will consider the application on merits. Ordinarily, courts would look favorably on a claim of a litigant to gain access to documents or other information reasonably required to assess or protect a threatened right or to advance a cause of action. This is so because courts take seriously the valid interest of a litigant to be placed in a position to present its case fully during the course of litigation. Whilst weighing meticulously where the interests of justice lie, courts strive to afford a party a reasonable opportunity to achieve its purpose in advancing its case. After all, an adequate opportunity to prepare and present one’s case is a time-honored part of a litigating party’s right to a fair trial.

18. The whole object of discovery is to ensure that before trial both parties are made aware of all the documentary evidence that is available. Discovery has been said to rank with cross-examination as one of the mightiest engines for the exposure of the truth. Properly employed where its use is called for, it can be, and often is a devastating tool. But it must not be abused or called in aid lightly in situations for which it was not designed or it will lose its edge and become debased. The obligation to produce documents is however, subject to certain limitations. For example, if the document is not in possession of the party being asked to produce, and he cannot produce it, the court will not compel him to do so. Similarly, a privileged document will not be subject to production. A document which is irrelevant will also not be subject to production.

19. It is nevertheless implicit to the requirement for production of documents that there should be some limitation on their production. For example, as authorities suggest, the document sought must be relevant. It would be absurd to suggest that a party will be compelled to produce a document despite the fact that the document has no relevance to any of the issues in the case. It is not difficult to conceive examples of documents which are totally irrelevant. What is more difficult to decide is where the line should be drawn. A document which has no relevance whatsoever to the issue between the parties would obviously by necessary implication be excluded. The overriding principle is that disclosure should be restricted to that which is necessary in the individual case.

20. It seems to me that every document which relates to the matter in question, contains information which may - not which must - either directly or indirectly enable the party requiring the document either to advance his own case or to damage the case of his adversary. I have used the words “either directly or indirectly” because, as it seems to me, a document can properly be said to contain information which may enable the party requiring the document either to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead him to a train of enquiry which may have either of these two consequences. The broad meaning ascribed to relevance is circumscribed by the requirement that the document relates to or may be relevant to “any matter in question.” The “matter in question” is determined from the pleadings. In order to decide the question of relevancy, the issues raised by the pleadings must be considered.

21. Other than relevancy, there is also the question of confidentiality. The leading case on the disclosure of confidential information is Science Research Council v Nasse19 in which the House of Lords held: -19{1980} AC 1028. a.There was no principle of English law by which documents were protected from disclosure by reason of confidentiality alone.b.In the exercise of its discretion to order disclosure, the court or tribunal would have regard to the fact that the documents were confidential and that to order disclosure would involve a breach of confidence.c.Relevance is a necessary, but not automatically sufficient, ingredient for disclosure.d.The ultimate test is whether disclosure is necessary for disposing fairly of proceedings.e.The court should inspect the documents and, if it is impressed with the need to preserve confidentiality, it should consider carefully whether the necessary information has been or can be obtained by other means, not involving a breach of confidence.f.The court will consider whether justice can be done by special measures such as redaction, anonymizing or, in rare cases, hearing in camera.g.The court should decide this by adopting a process avoiding delay and unnecessary applications.

22. The above principles were echoed by the Court of Appeal in Wallace Smith Trust Co Ltd (in liquidation) v Deloitte Haskins & Sells (a firm).20 Simon Brown LJ said ‘Disclosure will be necessary if: (a) it will give ‘litigious advantage’ to the party seeking inspection… and (b) the information sought is not otherwise available to that party by, for example, admissions or some other form of proceeding (e.g. interrogatories) or from some other source… and (c) such order for disclosure would not be oppressive.’20{1997} 1 WLR 257 at pp 266 to 268.

23. In the instant application, no argument was advanced that the cited documents cannot be available either through admission or other form of proceedings such as discovery and interrogatories. In particular, the parties appeared before court several times and the court issued directions on the mode of hearing. No suggestion was made that the applicant required any documents held in the custody of the 1st Respondent. On this ground alone, the applicant has not demonstrated that the documents or information sought cannot or could not be availed by deploying the provisions governing disclosure.

24. A party moving the court to be supplied with documents must demonstrate their relevancy to the issues at hand. Three of the vehicles cited in the application and the documents sought have nothing to do with the instant Petition. The dates cited on the said documents/information go beyond the date the cause of action which triggered these proceedings took place. The documents sought must be relevant to the issues at hand. Relevance is a necessary consideration, but not automatically sufficient, ingredient for disclosure. The ultimate test is whether disclosure is necessary for disposing fairly of proceedings. This pertinent ground was not explored by the Petitioner.

25. Additionally, a court will not order a party to produce a document it does not have. The obligation to disclose documents extends to those that are or have been within a party's control. Control extends to documents which a party has, or had, physical possession, or to which they have, or had, a right to possession or to inspect or to take copies. This will include documents in the possession of an employee or agent, over which a party has control. It may, but does not necessarily, include documents held by subsidiary companies, professional agents and ex-employees. On the other hand, relevant documents must be disclosed whether or not they are confidential, unless privilege applies. The pleadings, of course, play an important part in the disclosure exercise because it is only through the pleadings that the issues in the case to which disclosure is directed can be identified. Where the pleadings is not well particularized, the claimant may be more open to accusation of “fishing” than if he has a focused pleading. In this regard, to the extend that the bulk of the documents sought do not relate to the instant Petition, then the Petitioners are in my view engaged in a fishing expedition. Notably, there is no single prayer in the Petition seeking the said documents or information. The instant application is not founded on the Petition. The Petitioner is simply on a fishing mission. On this ground alone, the application collapses.

26. Conspicuously, the Petition and the application are not founded on Article 35 of the Constitution. The applicants counsel purported to rely on Article 35 and section 4 of the Access to Information Act in his submissions which legally frail and unsustainable. This is because the Petitioners’ case is founded on the Petition not the application. Even if we were to treat the Petition as having been founded on Article 35 (which I cannot do because it is not for this court to repair the Petitioners’ case), the Petitioners have not shown that they complied with section 8 (1) of the Access to Information Act.

27. The other ground upon which the Petitioners prayer for the documents collapse is that this Petition was triggered by an offence under the traffic Act and the orders sought in the Petition are directed against the traffic case. The Petitioners have not shown that the documents sought are required for their defense in the traffic case and that they requested for the documents in the said case and they were refused. Even if they did, then, they have a right of appeal or review if at all such a ruling exists. Again, on this ground, the prayer for documents collapses. The Petitioners’ prayer for the production of documents having collapsed, the prayer for summons to issue against a one Mr. Julius Nyamu, the Kilifi County Weights and Measures Officer to attend court must fall also for the same reasons.

28. One of the grounds cited by the Petitioners in support of the application is that the issues raised in this application will not only affect the Petitioners but the public at large and therefore the Petition raises issues of public interest. In Jennifer Shamalla v Law Society of Kenya Interested Party Independent Electoral & Boundaries Commission & 11 others21 this court citing dictionaries and decisional law accentuated with sufficient clarity what constitutes public interest litigation. According to Black's Law Dictionary22 "Public Interest Litigation means a legal action initiated in a court of law for the enforcement of public interest or general interest in which the public or class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected.21{2016} e KLR.22Sixth Edition.

29. Petitioners in the Petition are challenging traffic proceedings against the 2nd defendant and the legality of the 1st Respondent’s decision to detain its vehicle. There is no indication in the Petition that it is being brought on behalf of a group or class of persons. These arguments are now being presented in an interlocutory application and not in the Petition, so, they lack legs to stand on. In fact, one of the averments in the Petition is that the detention of the vehicle is occasioning the 1st Petitioner loss and damage, a confirmation that the interest sought to be protected is individual as opposed to group interest. In fact the Petitioner seeks to protect individual pecuniary loss, not group or community loss. Also, the traffic case under challenge is against the 2nd Petitioner, and not a group or class of persons. As I held in the above cited case, while dealing with the question of “bona fides” of a Petitioner, especially in the case of a person approaching the Court in the name of Public Interest Litigation, the Indian Supreme Court in the case of Ashok Kumar Pandey v State of West Bengal23 stated: -23AIR 2004 SC 280. “Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity seeking is not lurking. It is to be used as an effective weapon in the armory of law for delivering social justice to the citizens. The attractive brand name of public interest litigation should not be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not publicity oriented or founded on personal vendetta. As indicated above, Court must be careful to see that a body of persons or member of public, who approaches the court is acting bona fides and not for personal gain or private motive or political motivation or other oblique consideration. The Court must not allow its process to be abused for oblique considerations. Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motives. Often, they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busy bodies deserve to be thrown out by rejection at the threshold, and in appropriate cases with exemplary costs.”

30. The Supreme Court of India in Dr. Akhtar Hassan Khan v Federation of Pakistan24warned courts to guard against frivolous Petitions as it is a matter of common observation that in the garb of Public Interest Litigation, matters are brought before the court which are neither of public importance nor relatable to enforcement of a Fundamental Right or public duty. The Public Interest Litigation was designed to serve the purpose of protecting rights of the public at large through vigilant action by public spirited persons and swift justice.25 But the profound need of this tool has been plagued with misuses by persons who file Public Interest Litigations just for the publicity and those with vested political interests. 26The courts therefore, need to keep a check on the cases being filed and ensure the bona fide interest of the petitioner and the nature of the cause of action, in order to avoid unnecessary litigations. Vexatious and mischievous litigation must be identified and struck down so that the objectives of Public Interest Litigation aren’t violated. The constitution envisages the judiciary as “a bastion of rights and justice.24{2012} SCMR 45525(Public Interest Litigation: Use and Abuse, http://lawquestinternational.com/public-interest-litigation-use-and-abuse-0. )26( Ibid)

31. A.S. Anand, a former Chief Justice of India cautioned the over use of Public Interest Litigation and emphasized “care has to be taken to see that Public Interest Litigation essentially remains public interest litigation and is not allowed to degenerate into becoming political interest litigation or private inquisitiveness litigation.27 I find that this application and the instant Petition cannot be said to have been brought as a matter of public interest but it is essentially private interest.27(Abuse of Public Interest Litigation - A Major Threat on Judicial Process, http://www.legalserviceindia.com/article/l469-Public-Interest-Litigation.html rice India -use of Public Inerest Litigation - A Major Threat on Judicial Procrvice India - Abuse of Public Interest Litigation - A Major Thrat Judicial Process)

32. The upshot is that the Petitioners’ application dated 9th April 2021 fails. The said application is dismissed with costs to the 1st Respondent.

Orders accordinglySIGNED, DATED AND DELIVERED VIRTUALLY AT MOMBASA THIS 8 TH DAY OF MARCH 2022JOHN M. MATIVOJUDGE