[2022] KEHC 15126 (KLR)

Muriithi v Public Service Commission & 2 others; Rotich & 3 others (Interested Parties) (Constitutional Petition E007 of 2021) [2022] KEHC 15126 (KLR) (21 July 2022) (Ruling)

Neutral citation: [2022] KEHC 15126 (KLR)

Republic of Kenya

In the High Court at Kajiado

Constitutional Petition E007 of 2021

SN Mutuku, J

July 21, 2022

IN THE MATTER OF ARTICLES 1, 2, 3, 20, 21,22,23 & 258 OF THE CONSTITUTION OF KENYA 2010. AND IN THE MATTER OF VIOLATION OF ARTICLES 1,10,27,28,47,73,232 & 236 OF THE CONSTITUTION OF KENYA 2010. AND IN THE MATTER OF: PROVISIONS OF PUBLIC SERVICE (VALUE AND PRINCIPLES) ACT: PUBLIC SERVICE COMMISSION ACT: PUBLIC SERVICE COMMISSION REGULATIONS: PSC HUMAN RESOURCE POLICIES AND PROCEDURES MANUAL FOR THE PUBLIC SERVIE MAY 2016 AND 2016 SCHEME OF SERVICE FOR DOCTORS

Between

Kinyua Muriithi

Petitioner

and

Public Service Commission

1st Respondent

Principal Secretary, Ministry of Health

2nd Respondent

Attorney General

3rd Respondent

and

Simon Rotich

Interested Party

Charles Kandie

Interested Party

Hezekiah Chepkwony

Interested Party

Pius Wanjala

Interested Party

Ruling

1. The Petitioner is seeking through a Notice of Motion dated August 26, 2021 under Article 35 of the Constitution, section 69 of the Evidence Act, section 1A & 3A of the Civil Procedure Act, the following orders:i.Spent.ii.That this Honourable Court be pleased to issue an order directed at the 1st Respondent to produce and avail clear copies to Petitioner/parties herein and the court documents in regard to matters in question in this petition, and particularly: All the documents particularized in the Petitioner’s Notice of Production of documents dated July 15, 2021 and served on the 1st Respondent and other parties on July 15, 2021 within14 days failure to which the 1st Respondent’s Replying Affidavit sworn on July 12, 2021 will stand struck out with costs.iii.That costs of the Application be provided for.

2. In support of the application, the Petitioner has sworn an affidavit. Central to the averments in that affidavit is the contention by the Petitioner that the documents sought to be produced are in the sole custody of the 1st Respondent and the Petitioner has no way of accessing them; that the 1st Respondent’s Replying Affidavit sworn on July 12, 2021 admitted at paragraphs 23,24 25 and 28 the appointment of the 1st Interested Party as its Commission Secretary; that the said affidavit also confirmed the promotion/appointment of the 2nd Interested Party and further it is also admitted that the Commission received from the Ministry of Health a list of all officers that were considered for promotion vide the letter dated December 22, 2020 Ref No PSC/7 Vol IV (53); that on July 15, 2021 the Petitioner served the parties herein with a notice of production of the said documents dated July 15, 2021 but the 1st Respondent/Respondents have failed to avail the same to him or to the court despite the documents being required for the just determination of the suit.

3. The Application is opposed. The 1st Respondent filed a Replying Affidavit dated 16th November, 202 sworn by Remmy Mulati, the Deputy Secretary/ Chief Executive Officer (Corporate Services) of the 1st Respondent.

4. The case for the 1st Respondent is that the documents have confidential information, including salaries, personal numbers and job groups of public officers and that they were therefore unable to produce them. That the petitioner has not demonstrated the relevance of the said documents. That the Commission has not denied appointment of the 1st Interested Party and promotion of health care workers at the Ministry of Health, and there is nothing the required documentation will prove. That by the fact the Petitioner was able to file his submissions and the supplementary submissions, it means that he was to present their case without the documents required. That the application herein is therefore brought to court in bad faith and with ulterior motives. That striking the Replying Affidavit would violate the provisions of Article 50(1) of the Constitution.

Submissions 5. Submissions were made both in written form and orally in court on June 16, 2022.

6. The Applicant filed their submissions dated November 18, 2021 in which he has raised 3 issues for determination, namely:i.Whether the documents are in sole possession and custody of the 1st Respondent and whether the Applicant applied for them and were issued or reason for rejection provided within 21 days.ii.Whether the Applicant/Petitioner has demonstrated the relevance to the Petition of the impugned appointment letters/documents.iii.Whether the right to access of the impugned appointment letter/documents in sole custody/possession of the 1st Respondent is limited under section 6 of the Access to Information Act pursuant to Article 24 of the Constitution.

7. On the first issue, it is submitted that the 1st Respondent has not controverted the evidence that the Applicant served parties with Notice dated July 15, 2021 to produce/supply the letters of appointment, which notice was not complied with and that the 1st Respondent has admitted, at paragraphs 5 and 6 of its Replying Affidavit dated November 16, 2021, to being in sole possession, as a state organ, of the appointment letters.

8. On whether the Applicant has demonstrated the relevance to the petition of the impugned appointment letters-documents, it was submitted that the petition seeks to quash the two appointment letters; that the said letters are subject of the petition and are necessary for the fair and just determination of the suit herein; that they seek the said letters to be removed to court to be quashed and that this cannot be achieved if they are not available for that purpose.

9. The Applicant has argued that the law on discovery, the pre-trial discovery is so central to litigation that Order 11 of the Civil Procedure Rules is entirely devoted to this subject; that Orders 4 and 7 require parties to serve documentary evidence with their pleadings and that Order 14 empowers. They relied on the case of ABN Amro Bank NV -vs- Kenya Pipeline Company Limited[2014] eKLR on the issue of relevance. In that case the court stated that relevance entails the nexus between the documents and the case.

10. The Applicant also relied on the case of Jibril Konse Ali -vs- Aig Insurance Company Limited [2021] eKLR where the judge quoted, with approval, the case of Rafiki Microfinanace Bank Ltd -vs- Zenith Pharmaceuticals Ltd [2016] eKLR, where the court held as follows:“As illustrated by the learned authors in Halsbury’s Laws of England, Volume 13 at paragraph 38, the court will not make any orders for documents which have no significance or relevance to the matter. The learned authors’ state: ‘Discovery will not be ordered in respect of an irrelevant allegation in the pleadings, which even if substantiated, could not affect the result of the action nor in respect of an allegation not made in the pleadings or particulars nor will discovery be allowed to enable a party to “fish” for witnesses for a new case, that is to enable him frame a new case. Each case must be considered according to the issues raised; but where there are numerous documents of slight relevance and it would be oppressive to produce them all, some limitation may be imposed.”

11. It is the case for the Applicant that the documents sought to be produced in this matter are relevant and crucial as they relate and are limited to the matters in dispute.

12. On the third issue, it is submitted that the 1st Respondent has not demonstrated or pleaded any of the statutory limits under section 6(1) of Access to Information Act to warrant its decision to deny the production of the documents. The Applicant urged that the grounds relied on by the 1st Respondent that the appointment letter of the 1st Interested Party as the CEO of the 1st Respondent contains confidential information of remuneration and benefits that ought not to be publicly disclosed; that the letter Ref No PSC/7 Vol IV (53) dated 22nd December, 2020 together with attached documents contain personal numbers and Job Groups of 1,123 Healthcare Workers majority of whom are not parties to this suit and that disclosing salaries, personal numbers and Jog Groups of public officers would violate Article 31 (1) (c) of the Constitution has no legal backing.

13. It is submitted that the terms of employment including remuneration in terms of salary, allowances and other benefits of public officers and particularly senior public officers is always in the public domain/knowledge which must be disclosed/published during advertisements of corresponding vacant positions and therefore cannot be confidential information. The Applicant cited Section 37 (4) (d) and (e) of the Public Service Act that provides that:"An advertisement inviting applications to fill any vacancy in a public office shall provide for (d) the terms of employment; (e) the applicable remuneration including salary, allowances and other benefits."

14. It is submitted, further that the 1st Respondent ironically and unnecessarily annexed to its Replying Affidavit, a copy of a letter of appointment of the 1st Interested Party as Deputy Commission Secretary on December 20, 2017 as Annexure “RM-1 which said letter contains personal number and gross entry salary per month of the 1st Interested Party; that the 1st Respondent cannot turn around and state that the demanded letter contains confidential information.

15. The Respondents relied on its Replying Affidavit sworn by Remmy Mulati, and oral submissions. The 1st Respondent argued that the appointment of the 1st Interested Party is not disputed; that the letter Applicant wants to rely on contains personal information, including remuneration, of 1,123 other public officers who have no bearing to this case; that disclosing this information would be a violation of Article 31(c ) of the Constitution and goes against Part 4 of the Access to Information Act; that section 6 of Access to Information Act gives the 1st Respondent power to decline producing information that is sought because doing so would damage the 1st Respondent; that any party aggrieved by refusal by the 1st Respondent’s refusal to disclose information does not have to go to court as section 14 of Access to Information Act gives such a party relief to apply to 1st Respondent for review of its decision; that the Applicant has not complied with Section 14 before coming to court and has not exhausted the available channels.

16. It was also submitted that the information sought is not relevant and that the dispute will still be resolved in the absence of the information sought. The 1st Respondent relied on Chase Bank (K) Ltd v Canon Assurance (K) Limited [2019] eKLR; Rafiki Microfinanace Bank Ltd case and Concord Insurance co Ltd v NIC Bank Ltd[2013] eKLR on the issue of relevance of the information sought and submitted that the Applicant has not followed due process in seeking the information and that this application is a fishing expedition

17. The 4th Interested party filed his submissions dated June 11, 2022. He argued that the 1st Respondent in its Replying Affidavit did not controvert the issue of having received notice of production of documents and the refusal to produce the same and that it also admitted to be in sole custody of the subject documents. On whether the impugned documents were limited under section 6 of the Access to Information Act, he argued that it appears that the 1st Respondent dropped this issue going because the cited authorities do not touch on this issue. He submitted that the Petitioner has demonstrated that the requested documents are relevant to the petition.

Determination 18. Parties have submitted on the following issues:i.whether the documents are in sole possession and custody of the 1st Respondent; and whether the Applicant applied for them and were issued or reason for rejection provided within 21 days;ii.whether the Applicant/Petitioner has demonstrated the relevance to the Petition of the impugned appointment letters/documents; and,iii.whether the right to access of the impugned appointment letter/documents in sole custody/possession of the 1st Respondent is limited under section 6 of the Access to Information Act pursuant to Article 24 of the Constitution.

19. These are the issues this court will confine itself to in order to determine the application under consideration.

20. On the first issue, as submitted by the Petitioner and the 4th Interested Party, the 1st Respondent has admitted in its pleadings that it is in possession of the letter Ref No PSC/7 Vol IV (53) dated December 22, 2020. That letter is the subject of Notice of Production of Documents dated July 15, 2021. That Notice did not elicit any response hence this application.

21. Is this letter relevant to the Petitioner’s case? The Petitioner thinks it is while the 1st Respondent submitted that it is of no consequence to this case and that the issues arising from this case can be determined notwithstanding the absence of the letter. I have considered this issue. As stated in ABN Amro Bank NV -vs- Kenya Pipeline Company Limited [2014] eKLR, it is my view that there is a nexus between the letter in issue and this case. My reading of the pleadings in this case, arguments by parties and the relevant provisions of the law, it is my finding that the Petitioner and the 4th Interested Party have demonstrated relevance of that letter to the satisfaction of the court. Theirs is not a fishing expedition as argued by the 1st Respondent.

22. The third issue revolves around the position held by the 1st Respondent that it is protected by the law from disclosing the information contained in that letter. It is the argument of the 1st Respondent that the production of the documents required is a violation of Article 31(c) of the Constitution on right to privacy, section 26 of the Data Protection Act and section 6(d) of the Access to information Act which provides for the limitations of access to information. The Respondent argues that the confidentiality information such as remuneration, personal numbers and job groups of the public officers need to be maintained.

23. Article 31 of the Constitution provides that:Every person has the right to privacy, which includes the right not to have—(a)their person, home or property searched;(b)their possessions seized;(c)information relating to their family or private affairs unnecessarily required or revealed; or(d)the privacy of their communications infringed

24. For the 1st Respondent to operate under the ambit of section 6 of the Access to Information Act, the information contained in the letter in issue must fit any of the categories stated under that section. This court has not been provided with material showing that any of the conditions set out under Section 6 of Access to Information Act is applicable.

25. I have read section 37(4) (d) & (e) of the Public Service Commission Actwhich provides that, an advertisement inviting applications to fill any vacancy in a public office shall provide for— (d) the terms of employment; (e) the applicable remuneration including salary, allowances and other benefits. It is clear to me that under this section, terms and remuneration is displayed for the public to see in respect of public offices sought to be filled through public recruitment and is not a confidential matter.

26. In dealing with a similar issue in a case where a party argued violation of Article 31(c) of the Constitution, Court of Appeal in TOS v Maseno University & 3 others[2020] eKLR held that, what Article 31 (c) prohibits is unnecessary revelation of information relating to one’s family or private affairs. In our view, accurate and truthful documents that are filed by parties in court for purposes of proving issues or questions in dispute in order to enable a court reach a fair determination cannot be said to amount to violation of Articles 31(c) of the Constitution.

27. The Applicant has argued that he is seeking an order of certiorari to remove to this Honourable court and quash the 1st Respondent’s decision of recruitment of the 1st Interested Party as Public Service Commission Secretary and subsequent respective appointments of commissioned civil servants in job groups ‘’R’’ and ‘’S’’ vide letter dated December 22, 2020. It was their case that the court cannot quash something that is not presented in court.

28. The provisions of Section 22 (a) of the Civil Procedure Act are relevant in this case. It provides that:"Subject to such conditions and limitations as may be prescribed, the court may, at any time, either of its own motion or on the application of any party—a.make such orders as may be necessary or reasonable in all matters relating to the delivery and answering of interrogatories, the admission of documents and facts, and the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence."

29. Further, the court, in Oracle Productions Ltd v Decapture Ltd & 3 Others [2014] eKLR observed that pre-trial discovery is so central to litigation that the entire Order 11 of Civil Procedure Rules (2010) has substantially devoted to it, including sanctions for non- compliance. Similarly, in M L Sethi vs R P Kapur, 1972 AIR 2379, 1973 SCR (1) 697, the Supreme Court of India observed that: The documents sought to be discovered need not be admissible in evidence in the enquiry or proceedings. It is sufficient if the documents would be relevant for the purpose of throwing light on the matter in controversy. Every document which will throw any light on the case is a document relating to a matter in dispute in the proceedings, though it might not be admissible in evidence. In other words, a document might be inadmissible in evidence yet it may contain information which may either directly or indirectly enable the party seeking discovery either to advance his case or damage the adversary's case or which may lead to a trail of enquiry which may have either of these two consequences.

30. I think I have said enough to demonstrate that the Applicant has satisfied this court that the documents he is seeking to have produced are relevant to his case; that these documents are in custody of the 1st Respondent; that the 1st Respondent has failed to produce them even after being served with a Notice to produce; that the production of these documents is not a violation of the law; that the 1st Respondent is not protected from disclosing the information contained in those documents and that in order for this court to fully determine all the issues before it in respect of these proceedings, it is crucial to have the documents produced in court.

31. Consequently, I hereby allow the Notice of Motion dated August 26, 2021 in the following terms:i.That the 1st Respondent is hereby ordered by this court to produce and avail clear copies to the Petitioner/parties and the court all the documents particularized in the Petitioner’s Notice of Production of documents dated July 15, 2021 and served on the 1st Respondent and other parties on July 15, 2021 within14 days.ii.That failure to comply with the above order will attract sanctions by this court upon being appropriately moved by the Petitioner or any other party.iii.Costs of this application shall be in the cause.

32. Orders shall issue accordingly.

DATED, SIGNED AND DELIVERED THIS 21ST DAY OF JULY, 2022. S. N. MUTUKUJUDGE