[2016] KEHC 3612 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT KAKAMEGA.

MISC. CIVIL CASE NO. 23 OF 2016.

NAPHTALLY OMIDO :::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANTS

VERSUS

THE BOARD OF MANAGEMENT )

NAMUNDERA MIXED SEC. SCHOOL ) ::::::::::::::: RESPONDENTS

R U L I N G.

1. In the case of Nairobi Law Monthly vs. Kenya Electricity Generating Company HA (KENGEN) the court upheld the right to access information under Article 35 of the Constitution. Article 35 (2) stipulates that every citizen has the right of access to .........(b) information held by another person and required for the exercise or protection of any right or fundamental Freedom.

2. In the instant matter initiated vial Notice of Motion dated 27th April, 2016, the applicant seeks proceedings and verdict condemning him in the charges of insubordination and incitement. The motion is based on the ground that he requested some information from the respondent but in vain.

3. There was no disclosure to him by respondents of the evidence it used in declaring him guilty of the charges. Thus he is suffering psychological anguish and discomfort that has the potential to adversely affecting his professional growth. He has filed an affidavit in which he has sworn on 27th April, 2016 reiterating the same grounds. The respondent via secretary and the chairman did not swear any affidavit but did give sworn testimony during hearing of the application.

4. The applicant case is that he served as teacher of respondent between 2002 – 2011. On 2009 the respondent Board of Governors (BOG) tried and convicted him of 3 counts of incitement and insubordination. He was thus served with a last warning as a penalty and a sanction.

5. The verdict was communicated to various officers including himself. He thus sought proceedings that led to guilty verdict vide letter annexture letter dated 8th June, 2009 addressed to PDE. He intimated that he intended to appeal against the verdict.

6. There was no response to the same letter. He then went to respondent’s secretary in person and sought same information who informed him that same is confidential and only accessible to BOG alone. He further raised issue with TSC director, Kakamega County who advised him to raise same with secretary to the BOG.

7. He did same request on 7th march, 2016 to the respondent Board of management with no response thereto. He thus invokes provisions of Article 50 (5) (b) of the Constitution which stipulates that;

“An accused person has a right to a copy of record of the proceedings within a reasonable period after they are concluded, in return for a reasonable fee as prescribed by law”.

He thus seeks for the orders prayed in the motion.

8. In response to the applicant applications, the secretary of the Respondent stated that he reported as a new Principle of the School on 1st January, 2015 and was served with court documents on 5th May, 2016. He did not though state why he failed to file an affidavit to reply to the application. However, he stated that the sought minutes containing proceedings of the BOG are in his custody and a set was sent to the TSC. He stated that the applicant ought to have filed appeal against the verdict within 14 days of the verdict and thus he is now time barred. Further he can only seek the sought information from the TSC tribunal.

9. The chairman of the respondent confirmed the applicant appeared before the BOG of which he was then a member and after a hearing the applicant, he was found guilty along with 3 other teachers and was thus served with a warning letter. He stated that the applicant did not indicate the purpose for seeking the proceedings. He reiterates the secretaries’ contention that the same sought information is confidential.

10. After hearing the parties and their submissions, the court finds that the only issues is, whether the applicant is entitled to the information sought? Under Article 35 (1) (b) every citizen has the right of access to information held by another person and required for exercise or protection of any right or Fundamental Freedom.

11. The applicant wanted to appeal against the BOG verdict but was denied the document sought to enable him exercise right of appeal and enforcement of his right of fair trial under Article 50 (1) and 25 (C).

12. Though the above provisions were not inforce then as the Constitution 2010 was promulgated on 27th August, 2010, the provisions of Section 77 (9) of the repealed Constitutions had entrenched principles for fair hearing and natural justice. The instant application is brought under new Constitutional dispensation with provisions of Article 50 (1) and 25 (C) being inforce.

13. The fact that the time for lodging an appeal has lapsed, does not derogate the applicant’s right entrenched under Article 35 (1) (b). The allegations for confidentiality of the proceedings under Education Act cannot override the Constitutional Provisions under Bill of Rights. In any event the Education Act of 2009 would have to give way to Article 35 (1) (b) by virtue of schedule 6 rule 7 which stipulated that, all law inforce immediately before effective date continues inforce and shall be construed with alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with constitution.

14. No prejudice has been demonstrated in event a copy of sought information is provided to the applicant. The court therefore makes the following orders:-

(1) A copy of the proceedings for the BOG be supplied as prayed in paragraph 2 of the Notice of Motion dated 27th April, 2016 within 14 days;

(2) The respondent to pay applicant Ksh. 10,000/= as costs of this application.

Orders accordingly.

SIGNED, DATED, and DELIVEREDat KAKAMEGA this 16THday ofAUGUST,2016.

C. KARIUKI.

JUDGE.

In the Presence of:-

............................................................................................. for the Applicant.

..............................................................................................for the Respondents.

............................................................................................. Court Assistant.