[2019] KEHC 12200 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

CONSOLIDATED PETITIONS NO. 56, 58 & 59 OF 2019

BETWEEN

NUBIAN RIGHTS FORUM.............................................................1ST PETITIONER

KENYA HUMAN RIGHTS COMMISSION..................................2ND PETITIONER

KENYA NATIONAL COMMISSION ON HUMAN RIGHTS....3RDPETITIONER

AND

THE HON. ATTORNEY-GENERAL.............................................1ST RESPONDENT

THE CABINET SECRETARY, MINISTRY OF INTERIOR

& CO-ORDINATION OF NATIONAL GOVERNMENT...........2ND RESPONDENT

THE PRINCIPAL SECRETARY, MINISTRY OF INTERIOR

& CO-ORDINATION OF NATIONAL GOVERNMENT...........3RD RESPONDENT

THE DIRECTOR NATIONAL REGISTRATION.......................4TH RESPONDENT

THE CABINET SECRETARY, MINISTRY OF INFORMATION,

COMMUNICATION & TECHNOLOGY......................................5TH RESPONDENT

THE SPEAKER, NATIONAL ASSEMBLY...................................6TH RESPONDENT

KENYA LAW REFORM COMMISSION......................................7TH RESPONDENT

AND

CHILD WELFARE SOCIETY............................................1ST INTERESTED PARTY

AJIBIKA SOCIETY.............................................................2ND INTERESTED PARTY

MUSLIMS FOR HUMAN RIGHTS INITIATIVE...........3RD INTERESTED PARTY

HAKI CENTRE....................................................................4TH INTERESTED PARTY

LAW SOCIETY OF KENYA...............................................5TH INTERESTED PARTY

INFORM ACTION................................................................6TH INTERESTED PARTY

BUNGE LA WANAINCHI....................................................7TH INTERESTED PARTY

INTERNATIONAL POLICY GROUP.................................8TH INTERESTED PARTY

TERROR VICTIMS SUPPORT INITIATIVE....................9TH INTERESTED PARTY

RULING NO. 5

The judgment in the Consolidated Petitions herein was set for delivery today. However, two intervening factors, namely the enactment of the Data Protection Act, and the receipt of a letter dated 26th November 2019 from Mr. Mwendwa, the counsel for the 6th Respondent, seeking directions from the court in light of the said enactment, made delivery not possible. In addition, as the Data Protection Act was enacted after reserving judgment, this Court is guided by the provisions of section 60 of the Evidence Act that obliges it to have judicial notice of all written laws. The Court therefore considered it prudent that parties be given opportunity to comment on the Data Protection Act, as it may be relevant to some of the issues raised in the Petition herein. Judgment was thus deferred, and the Court directed that a hearing be set for today to receive submissions from the parties on the Act, and to set a new judgment date.

We have considered the submissions received from the parties, who, in summary, have requested the Court to take judicial notice of the Data Protection Act, and set an early judgment date. There we differing opinions as to what is meant by taking judicial notice of the Act, which is a matter that this Court will address, and decide on in its judgment.

Notwithstanding the emerging consensus on the way forward, this Court needs to address concerns raised by the Petitioners and Interested Parties supporting the Consolidated Petitions on what was termed as a unilateral communication with the Court by Mr. Mwendwa, and the perception caused thereby. It is this Court’s view and finding that there is no basis to make any such adverse inferences from the said communication by Mr. Mwendwa for three reasons.

Firstly, it is on record that this Court in a letter by the Deputy Registrar dated 26th November 2019 expressly directed Mr. Mwendwa to copy and inform all the parties of his communication with the Court, and returned to him his earlier letter in which he had not done so. Mr. Mwendwa subsequently wrote another letter dated 21st November 2019, that was copied to all parties which was admitted to the Court record.

Secondly, the content of Mr. Mwendwa’s letter of 21st November 2019 was to inform this Court on the enactment of the Data Protection Act, which is a public document, and seek directions on the same. This Court in this respect has power and discretion to give directions under Article 159 of the Constitution, which obliges this Court to provide substantive justice, and Rule 3 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 which provides as follows:

“3. (1) These rules shall apply to all proceedings made under Article 22 of the Constitution.

(2) The overriding objective of these rules is to facilitate access to justice for all persons as required under Article 48 of the Constitution.

(3)These rules shall be interpreted in accordance with Article 259(1) of the Constitution and shall be applied with a view to advancing and realising the— (a) rights and fundamental freedoms enshrined in the Bill of Rights; and

(b) values and principles in the Constitution.

(4) The Court in exercise of its jurisdiction under these rules shall facilitate the just, expeditious, proportionate and affordable resolution of all cases.

(5) For the purpose of furthering the overriding objective, the Court shall handle all matters presented before it to achieve the—

(a) just determination of the proceedings;

(b) efficient use of the available and administrative resources;

(c) timely disposal of proceedings at a cost affordable by the respective parties; and

(d) use of appropriate technology.

(6) A party to proceedings commenced under these rules, or an advocate for such party is under a duty to assist the Court to further the overriding objective of these rules and in that regard to—

(a) participate in the processes of the Court; and

(b) comply with the directions and orders of the Court.

(7) The Court shall pursue access to justice for all persons including the—

(a) poor;

(b) illiterate;

(c) uninformed;

(d) unrepresented; and

(e) persons with disabilities

(8) 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.”

Lastly, Mr. Mbarak, who was holding Mr. Mwendwa’s brief, has unreservedly apologised to the Court and to the parties for any omission in complying with this Court’s directions to copy and serve the parties in time. We are therefore not persuaded that there was any intentional misconduct on Mr. Mwendwa’s part.

In the premises, judgment in the Consolidated Petitions herein is now reserved for 30th January 2020 at3. 00 pm.

Orders accordingly.

DATED AND SIGNED AT NAIROBI THIS 18TH DAY OF DECEMBER 2019

P. NYAMWEYA MUMBI NGUGI W. KORIR

JUDGE JUDGE JUDGE