[2022] KEHC 26910 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NUMBER 30 OF 2017

YUNIA OGOLA..............................................................................................PETITIONER

VERSUS

THE ATTORNEY GENERAL.............................................................1ST RESPONDENT

THE REGISTRAR OF THE JUDICIARY.........................................2ND RESPONDENT

THE COMMISSIONER OF PRISONS..............................................3RD RESPONDENT

J U D G M E N T

1. The Petitioner filed the petition dated 2nd February, 2017 seeking the following orders: -

1. A declaration that the Respondents infringed, violated and breached the Petitioner's Fundamental Rights and Freedoms enshrined in Article 35 (1) (b) of the Constitution of Kenya 2010.

2. A declaration that the Petitioner is entitled to information on the sentence meted out on her deceased son.

3. An order of mandamus directed to The Chief Registrar of The Judiciary to furnish the Petitioner with full information on the sentences meted out to the deceased son.

4. An order of mandamus directed to The Commissioner of Prisons to furnish the Petitioner with documentation on the enforcement of the death sentence made against her deceased son.

5. An order that the Respondent pay the Petitioner exemplarily aggravated damages for violation of her Constitutional Rights and Fundamental Freedoms.

6. A declaration that the Petitioner is entitled to the costs of this petition.

7. Interest on 5 and 6 from date of Judgement till date of payment in full at Court rates.

2. The Petitioner has in her pleadings cited various articles of the Constitution namely: -

i) Articles 2, 3, 10, 20, 35, 47, 73, 262.

ii) Sections 330, 331, 332 of the Criminal Procedure Code.

iii) Section 3, 4 of the Fair Administrative Action Act.

iv) Rules 103, 104 & 105 of the Prison Rules.

3. She contends that she requested for information from the respondent but it was not availed to her. That the failure to do so infringed on her rights as guaranteed in Article 35(1) of the Constitution. She further states that the Respondents did not give her any reason for their refusal to give her the information requested for, thus violating Article 10 of the Constitution.

4. In her supporting affidavit she avers that she is the mother of the Late Corporal Walter Odera Oyode formerly of Kenya Air Force. That prior to his death he was detained, tortured, denied his constitutional rights, tried and sentenced to death by hanging by the Court Martial for suspicion of involvement in the Coup de etat of 1st August, 1982. He was hanged at Kamiti Maximum Security Prisons in 1985 or thereabouts.

5. She avers that she has never been issued with a certificate of service or death of her son.

6. She has sought to be issued with the following: -

a) A certificate from the Registrar of the High Court of Kenya declaring that a death sentence had been passed against Corporal Walter Odira Ojode (deceased).

b) A death warrant issued by the then President of the Republic of Kenya pursuant to which Corporal Walter Odira Ojode was allegedly hanged.

c) A certificate from the Superintendent of Kamiti Maximum Security Prison where Corporal Walter Odira Ojode was hanged.

d) Entries or recordings of the court proceedings at the Court Martial upon which basis the Presiding Judge's decision to hang her son was made.

e) Notes of evidence taken on the Trial and a report and recommendation of the trial/Presiding Judge to the President of the Republic of Kenya that her son was hanged.

f) His belongings that are held by the armed forces after the 1982 coup de etat.

g) That through her advocates office she be issued with an official extract of service for her late son Corporal Walter Odira Ojode

7. The 1st Respondent (the Attorney General) on behalf of the Respondents filed grounds of opposition as follows: -

1. THAT this Petition is prematurely brought as the Petitioner have not exhausted the relevant avenues in seeking information before bringing this petition to court. As per the provisions of Article 35 of the Constitution of Kenya to claim that his right to access to information has been denied.

2. THAT the jurisdiction of this honorable court has been abusively and prematurely invoked by the Petitioner, as the Petitioner have failed on their part to seek Information from relevant authorities before bringing this Petition.

3. THAT the 1st & 3rd Respondents acted within their constitutional and statutory mandate in discharging their duties.

4. THAT the instant Petition is full of glaring conjectures and unsubstantiated allegations against the Respondents. That is to say, the Petitioner has failed to demonstrate to the required degree of standards and with reasonable precision which of his fundamental rights and/or freedoms have been violated and by whom and how.

5. THAT the orders sought by the Petitioner in the main petition are couched in casual generalities hence ambiguous and unmerited. The same are without any legal basis.

6 THAT the entire petition lacks merit and should be dismissed as being an abuse of the court process and should be dismissed with costs.

8. Further grounds dated 11th March, 2017 (?) and filed on 13th March, 2019 request for dismissal of the petition on the following grounds: -

1. THAT there is an unreasonable delay by the plaintiff in bringing the petition as the Petition is brought 3 decades after the alleged cause of action.

2. THAT the relief sought in this petition are not tenable as the information and documentation that the Petitioner is seeking cannot be traced.

3. THAT the Petition does not disclose or demonstrate any constitutional violations of his rights by the Respondents.

4. THAT the Petition is misconceived, incompetent and bad in law and the orders sought are not tenable in law.

5. THAT the entire petition lacks merit and should be dismissed as being an abuse of the court process and should be dismissed with costs.

9. The Petition was canvassed by way of written submissions. The Petitioner’s two sets of submissions are through Agina & Associates Advocates. The first submissions are dated 5th July, 2017 in which counsel gave a background of the claim. He submitted that the Petitioner’s late son was a service man in the Kenya Air Force Service who was charged and tried before the court martial at Langata barracks. He was convicted and sentenced to death on 6th December, 1982. He filed an appeal before the High Court Nairobi. It was heard by two Judges who dismissed it and confirmed the sentence on 22nd November, 1983.

10. He argues that the Petitioner received no communication in respect of her son. She then wrote to the Respondents asking for the documents listed at Paragraph 6 of this Judgment. She did this pursuant to Part 10 of the Criminal Procedure Code Cap 75 of the Laws of Kenya, Section 129 of the Armed Forces Act No. 60 of 1968. She never received any response to her request.

11. Counsel filed supplementary submissions dated 17th May, 2019. He contends that the right to information is a constitutional right which is the foundation of an open, responsive, accountable and democratic government and its institution. In reference to the Respondents’ response counsel submits that the Respondents have contradicted themselves. That they claim that the Petitioner has not exhausted the relevant avenues and at the same time they say the stated information sought is not available. He reiterates that the Respondents have a duty to supply the information requested for by the Petitioner. He refers to Article 35(1) (a) of the Constitution, which he submits has been violated.

12. He further submits that any delay by the Petitioner in lodging her request has not caused the Respondents any prejudice. He, therefore, urges the court to grant the reliefs sought as the Petitioner has proved that there has been infringement of her right of access to information.

13. The Respondents’ submissions are dated 11th March, 2018 and filed by M/s Chiringa Marima for the Attorney General who has identified four (4) issues namely: -

i) Whether there has been a violation of the Petitioner’s rights.

ii) Whether the Petitioner’s rights under Article 35 on the right to Access of information has been infringed by the Respondents.

iii) Whether there has been inordinate delay in lodging this Constitutional Petition.

iv) Whether the Petitioner is entitled to the reliefs sought in the Petition.

14. Counsel contends that though there is no limitation to the period within which to file a petition claiming infringement of human rights, a party should act within reasonable time. She referred to the following cases:

- Akinyi Kabasellah & 2 Others Vs Attorney General – Petition No. 41 of 2014.

- Dominic Arony Amolo Vs Attorney General – Nairobi High Court Misc. Civil Case No. 1184 of 2003(OS) [2010] eKLR.

- James Kanyuta Vs Attorney General & Another, Nairobi Petition No. 180 of 2011.

It is her submission that the Petitioner took more than three decades to file her claim which is inordinate delay and the same has not been explained.

15. She submits that the Petitioner has not exhausted the relevant avenues in seeking of information before filing the claim. She referred to the case of Anarita Karimi Njeru Vs Republic (1976 – 1980) KLR 1272 which set out the principles to be adhered to in filing a petition alleging a contravention or threat of contravention of a constitutional right. These are: -

(i) Constitutional violations must be pleaded with a reasonable degree of precision.

(ii) The Articles of the Constitution which entitles rights to the Petitioner must be precisely enumerated and how it is entitled to the same.

(iii) The violations must be particularized in a precise manner.

(iv) The manner in which the alleged violations were committed and to what extent.

16. She referred to the case of Meme Vs Republic & another [2004] eKLR where the principles were applied and the court held thus : -

"Where a person is seeking redress from the High Court on a matter which involves a reference to the constitution, it is important that he should set out with a reasonable degree of precision that of which he complains the provisions said to have been infringed and the manner in which they are alleged to have been infringed and that the applicant's instant application had not fully complied with the basic tests of constitutional reference; as it was founded on generalized complains without any focus, law or Constitution. Hence it had nothing to do with constitutional rights of the appellants."

17. Also referred to is the case of Republic Vs Truth Justice & Reconciliation Commission & Another, ex Parte Augustine Kathungu & 9 Others (2011) eKLR where the court stated as follows:

.....Article 22 in Conjunction with Article 258 of the current Constitution which gives every person the right to institute court proceedings when the constitution has been contravened or is threatened with contravention. That in our view, obliges an exparte applicant to clearly set out the acts and/or omissions that, in his view contravene the constitution and also specify the provisions of the constitution that those acts or omissions contravene and the prayers or relief he or she seeks.....

18. It is counsel’s submission that the petition does not meet the principles espoused in the Anarita Karimi Njeru case (supra). Further that the Petitioner has failed to prove any violation of her constitutional rights or how any of her rights have been violated. In conclusion it’s her submission that the Petitioner is not entitled to any of the prayers sought, and the Petition should be dismissed, with costs.

Analysis and Determination

19. I have duly considered the Petition, affidavit, grounds of opposition plus submissions by both parties. The main issue for determination is whether the Petitioner has established violation of her right to access to information.

20. The starting point in this matter is in the Constitution. The right to access information falls directly within the ambit of fundamental rights and freedoms under Chapter 4 of the Constitution. This right is provided under Article 35 of the Constitution as follows:

(1)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.

(2) Every person has the right to the correction or deletion of untrue or misleading information that affects the person.

(3) The State shall publish and publicise any important information affecting the nation.

21. Likewise, this right is also expressed under Article 33(1)(a) of the Constitution as follows:

1. Every person has the right to freedom of expression, which includes--

a. freedom to seek, receive or impart information or ideas;

22. The right to access information is not only a hallmark of the new Constitution, but is also envisaged as a critical right universally. This was appreciated by the Court in the case of Nairobi Law Monthly Company Limited(supra).

“26. It is, I believe, beyond dispute that the right to information is at the core of the exercise and enjoyment of all other rights by citizens. It has been recognised expressly in the Constitution of Kenya 2010, and in international conventions to which Kenya is a party and which form part of Kenyan law by virtue of Article 2(6) of the Constitution. Article 19 of the Universal Declaration of Human Rights (UDHR) adopted by the United Nations in 1948 provides that

‘Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.’

27. Similarly, Article 19 (2) of the International Covenant on Civil and Political Rights (ICCPR), adopted by the United Nations in 1966, provides that:

‘Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print in the form of art, or through any other media of his choice.’

28. The right to freedom of information has also been recognized in regional treaties to which Kenya is a party. Article 9 of the African Charter on Human and People's Rights (The (Banjul Charter) states that:

Every individual shall have the right to receive information.”

23. The Access to Information Act (No. 31 of 2016) was enacted to give effect to Article 35 of the Constitution. This Act in essence provides the procedures to be followed when seeking any information held by the State or another person. At its preamble the Act states its purpose as

‘to give effect to Article 35 of the Constitution; to confer on the Commission on Administrative Justice the oversight and enforcement functions and powers and for connected purposes’.

24. Section 3 of the Act provides for its objectives which are as follows:

a. give effect to the right of access to information by citizens as provided under Article 35 of the Constitution;

b. provide a framework for public entities and private bodies to proactively disclose information that they hold and to provide information on request in line with the constitutional principles;

c. provide a framework to facilitate access to information held by private bodies in compliance with any right protected by the Constitution and any other law;

d. promote routine and systematic information disclosure by public entities and private bodies on constitutional principles relating to accountability, transparency and public participation and access to information;

e. provide for the protection of persons who disclose information of public interest in good faith; and

f. provide a framework to facilitate public education on the right to access information under this Act.

25. I wish to refer to the following cases to reiterate the position above: -

i) Njonjo Mue & Another Vs Chairperson of Independent Electoral & Boundaries Commission & 3 Others [2017] eKLR.

ii) Katiba Institute Vs Presidents Delivery Unit & 3 Others [2017] eKLR.

26. While it is certain that citizens enjoy the right to access information held by the state and private bodies, citizens are required to request for this information as prescribed by the Act. I will therefore, analyze this matter in light of the procedures set out in the access to Information Act 2016.

27. A party seeking to access information held by the state or private body is first required to address the request to the designated information access officer under Section 7. This Section provides as follows:

1. A Chief Executive Officer of a public entity shall be an information access officer for purposes of this Act.

2. A Chief Executive Officer of a public entity may delegate the performance of his or her duties as an information access officer under this Act to any officer of the public entity.

28. To access this request the party under Section 8(1) of the Act is required to make an application to access the information in writing either in English or Kiswahili and to provide details and sufficient particulars for the public officer to understand what information is being requested. The public officer will under Section 9 process the application and make a decision on an application as soon as possible, but in any event, within twenty one days of receipt of the application.

29. In the present case the Petitioner has cited various Articles of the Constitution and provisions of the law. She does not, however, explain how they apply to her. Be it as it may, this court will analyze the material before it to satisfy itself on whether the Respondents have refused to supply the Petitioner with all the documents she has cited. At Paragraph 9 of the her supporting affidavit she avers that: -

“the state has continually failed to furnish me with information on my son, Corporal Odira Ojode a contravention of my constitutional rights.”

30. In his original submissions dated 5th July, 2017 M/s Agina & Associates Advocates submitted as follows at page 4: -

“Thereafter there is no communication to the Petitioner as to what happened to her son. This prompted her after 34 years hiatus (sic) to write to the Attorney General, the Registrar of the Judiciary, the Chief of Defence Forces and the Commissioner of Prisons asking for: -

i) Certificate from the Registrar of the High Court of Kenya that sentence of death had been passed against him by the Court Martial was confirmed by the High Court on 22nd November, 1983.

ii) Report and recommendation of the Presiding judges to the President of the Republics.

iii) The Presiding communication to the Presiding judge or his succession in office setting out the terms of any decision.

iv) The entry in the records o the court by the Presiding Judge of the President’s decision.

v) The death warrant issued by the President and the commander of the Armed Forces pursuant to which Corporal Walter Odira Ojode was put to death.

vi) Certificate of death from the superintendent of the Prison where Corporal Walter Oduor Ojode put to death.

This request was made on ……. Pursuant to Article 35(1) of the Constitution of Kenya 2010 to date there has been no response to the request nor to this petition.”

31. I have perused the pleadings and there is nothing whatsoever to prove that the Petitioner ever requested for any information concerning her deceased son from the Respondents or any other state officer. Even the counsel is not aware of the date when the request for information was allegedly made. Secondly, no evidence has been placed before this court to show that the Respondents had a legal duty to update her, (without her requesting) of everything about her son upon conviction and commitment to Prison and upon being sentenced to death.

32. The Petitioner has referred to Part 10 of the Criminal Procedure Code, Chapter 75 of the Laws of Kenya. This part refers to sentences and their execution. The relevant part is the one on the death sentence.

Section 330 States:

Accused to be informed of right to appeal

When an accused person is sentenced to death, the court shall inform him of the time within which, if he wishes to appeal, his appeal should be preferred.

Section 331 States: -

Authority for detention

A certificate under the hand of the Registrar or other officer of the court that sentence of death has been passed, and naming the person condemned, shall be sufficient authority for the detention of that person.

Section 332 states

Record and report to be sent to President

(1) As soon as conveniently may be after sentence of death has been pronounced, if no appeal from the sentence is confirmed, then as soon as conveniently may be after confirmation, the presiding judge shall forward to the President a copy of the notes of evidence taken on the trial, with a report in writing signed by him containing any recommendation or observations on the case he may think fit to make.

(2) The President, after considering the report, shall communicate to the judge, or his successor in office, the terms of any decision to which he may come thereon, and the judge shall cause the tenor and substance thereof to be entered in the records of the court.

(3) The President shall issue a death warrant, or an order for the sentence of death to be commuted, or a pardon, under his hand and the Public Seal of Kenya to give effect to the decision, and—

(a) if the sentence of death is to be carried out, the warrant shall state the place where and the time when execution is to be had, and shall give directions as to the place of burial or cremation of the body of the person executed;

(b) if the sentence is commuted for any other punishment, the order shall specify that punishment;

(c) if the person sentenced is pardoned, the pardon shall state whether it is free, or to what conditions (if any) it is subject:

Provided that the President’s warrant may direct that the execution shall take place at such time and at such place and that the body of the person executed shall be buried or cremated at such place as shall be appointed by some officer specified in the warrant.

(4) The warrant, or order, or pardon, of the President shall be sufficient authority in law to all persons to whom it is directed to execute the sentence of death or other punishment awarded, and to carry out the directions therein given in accordance with the terms thereof.

33. It has been submitted that the deceased appealed against the death sentence but the same was upheld by the two (2) Judge bench of the High Court. A reading of Sections 330-332 nowhere mandates the Respondents to pass this information to the deceased’s family. However, if the same is requested from them, there is no reason why it should not be released to the family.

34. For the Respondents to be accused of denying the Petitioner the right to access to information there had to be evidence to show that the information was requested for and how the request was made. There must also be evidence of the denial of the said right.

35. My finding is that there has been no proof of a request of the information. That being the case, I further find, that the petition was filed prematurely in the sense that no information was requested for from the Respondents by the Petitioner. For there to be a violation there must be evidence of the request made and a denial to issue by the Respondents. The upshot is that the petition lacks merit and is dismissed. Each party to bear his/her own costs.

Orders accordingly.

DELIVERED VIRTUALLY, SIGNED AND DATED THIS 3RD DAY OF FEBRUARY, 2022 IN OPEN COURT AT MILIMANI, NAIROBI.

H. I. ONG’UDI

JUDGE OF THE HIGH COURT