Hbm (a Child Suing Through Her Father and Next Friend) Gmm v Inspector General of Police & 3 others

JUDGMENT Introduction 1. This Petition presents for determination questions touching on the scope and enforceability of the right of access to information under Article 35 of the Constitution, the propriety of investigative and administrative action undertaken by State agencies, and the applicability of the doctrines of exhaustion and constitutional avoidance. The Petitioner alleges grave violations of his fundamental rights and those of his minor daughter, while the Respondents contend that the matter is prematurely before this Court and is otherwise devoid of merit. 2. At the heart of the dispute lies the delicate intersection between constitutional guarantees and statutory mechanisms designed to operationalize them. The Court is thus called upon to interrogate not only the factual matrix giving rise to the Petition, but also the proper forum and procedure for redress where access to information is alleged to have been denied, and whether the conduct of the Respondents meets the constitutional threshold of accountability, responsiveness and respect for fundamental rights. 3. This Petition arises from a Notice of Motion and Petition dated 11th and 12th June 2019 respectively, by which the Petitioner seeks this Court’s intervention to vindicate his constitutional rights and those of his minor daughter, HBM. At the commencement of these proceedings, the Court certified the matter as urgent and directed that it be heard in camera, in light of the serious allegations of threats to the Petitioner’s life and the safety of his family. The gravamen of the Petition is that the Respondents, being State agencies and public bodies, have persistently failed, refused and/or neglected to furnish the Petitioner with information sought pursuant to Article 35 of the Constitution of Kenya, 2010, thereby violating his constitutional rights and occasioning grave prejudice to his daughter. The Petitioner’s Case 4. The Petitioner, a widower, avers that on 1st December 2016 his daughter disappeared and was subsequently traced to Mukuru Kayaba with the assistance of Administration Police officers. Medical examination allegedly confirmed that she had been defiled. Although one suspect was arraigned before the Makadara Law Courts, the minor later identified a different individual as the actual perpetrator. 5. That individual, according to the Petitioner, was arrested but released without charge in circumstances he terms irregular and suspect. He further alleges that upon protesting the suspect’s release, he was offered a monetary inducement to abandon the matter. 6. The Petitioner contends that a police officer attached to Tassia Police Post not only mishandled the investigation but also introduced his daughter to drug trafficking activities and engaged in acts of intimidation and misconduct. Despite numerous complaints to superior officers and investigative bodies, he maintains that no effective remedial action was taken. 7. It is further the Petitioner’s case that, rather than addressing his grievances, the Respondents subjected him to harassment, intimidation and unlawful arrest, and threatened him against pursuing accountability. 8. He asserts that his daughter was irregularly transferred between remand and rehabilitation institutions, detained without his consent, exposed to religious instruction contrary to her faith, and deprived of her right to education. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19408/eng@2025-04-10 2

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9. Further, he avers that court orders were disregarded and that investigations into the alleged defilement and attendant police misconduct were inordinately delayed or frustrated, thereby infringing the minor’s rights to dignity under Article 28, access to justice under Article 48, and education. 10. At the core of the Petitioner’s grievance is the assertion that the Respondents have failed and/or refused to disclose information relating to his various complaints, including specified Occurrence Book (OB) entries, investigation files, recorded witness statements, official correspondence, and the status, progress, and outcome of inquiries undertaken by the relevant authorities, despite formal requests having been made for such disclosure. 11. The Petitioner contends that this information is held by the Respondents and is indispensable to the effective protection of his daughter’s rights. He relies on Article 35(1) of the Constitution, which guarantees every citizen the right of access to information held by the State or required for the exercise or protection of any right or fundamental freedom. He asserts that the right is neither discretionary nor conditional, and that once a request is made, the State bears a constitutional obligation to provide the information expeditiously. 12. The Petitioner maintains that the Respondents have neither invoked nor demonstrated any lawful basis for withholding the information sought. In his view, the explanation advanced by the 2nd Respondent that disclosure would jeopardize investigations and compromise witness safety is unsubstantiated and designed to shield inaction. He contends that any limitation of a constitutional right must be strictly justified, and that in the absence of such justification, the continued refusal to disclose information constitutes a clear violation of Article 35. He further seeks declaratory relief regarding the alleged delay in investigations and the failure to prosecute the alleged perpetrator, extension of parental responsibility beyond the minor’s eighteenth birthday, and general and exemplary damages in the sum of Kshs. 20,000,000/= for the alleged constitutional violations. The Respondents’ case 13. The 1st, 3rd and 4th Respondents oppose the Petition and rely on a Replying Affidavit sworn by an officer of the Internal Affairs Unit of the National Police Service. They contend that upon receipt of the Petitioner’s complaint, the Internal Affairs Unit instituted independent investigations within its statutory mandate. Upon conclusion of the inquiry, the matter was referred to the Child Protection Unit under the Directorate of Criminal Investigations for further action; disciplinary proceedings were recommended against the officer concerned for negligence under the National Police Service Act; and the inquiry file was forwarded to the National Police Service Commission for its information and record. They therefore deny any dereliction of duty. 14. On the claim grounded in Article 35, the Respondents submit that while the Constitution guarantees the right of access to information, that right has been operationalized by the Access to Information Act, which prescribes a detailed procedure for requesting information and for seeking review where access is denied. They contend that the Petitioner did not comply with Section 8 of the Act, which requires a written application containing sufficient particulars. 15. In particular, they assert that no evidence has been tendered demonstrating that a proper request for information was made to the 3rd Respondent in accordance with the statutory requirements. They further argue that any dissatisfaction with a decision or deemed refusal ought to have been pursued before the Commission on Administrative Justice under the review and complaints mechanisms established by the Act. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19408/eng@2025-04-10 3

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16. The Respondents thus invoke the doctrines of exhaustion and constitutional avoidance, contending that where Parliament has provided a specific and efficacious remedy, that procedure must be strictly adhered to and the Court ought not to be the forum of first instance. They further rely on Article 245(4)(a) of the Constitution to submit that the Court cannot direct the Inspector General of Police to investigate any particular offence in a specified manner, and that any orders purporting to supervise or compel investigative outcomes would offend the constitutional independence of that office. 17. The Respondents maintain that the Petition is premature, misconceived and an abuse of the Court process. that investigations were duly conducted and appropriate action taken; that the statutory procedures under the Access to Information Act were not complied with; and that the Petitioner failed to exhaust the alternative remedies available to him. 18. They accordingly urge the Court to dismiss the Petition with costs. Analysis and determination 19. Having carefully considered the pleadings, affidavits, and rival submissions of the parties, the following issues arise for determination by this Court— i. Whether the Petitioner’s right of access to information under Article 35 of the Constitution was violated by the Respondents’ alleged failure and/or refusal to disclose the information sought. ii. Whether the Petitioner complied with, or was required to exhaust, the statutory mechanisms provided under the Access to Information Act before invoking the constitutional jurisdiction of this Court. iii. What reliefs, if any, are appropriate and just in the circumstances of this case, including whether the Court ought to grant declaratory orders, extend parental responsibility, and award general and exemplary damages. 20. The starting point in the determination of this dispute must be Article 35 of the Constitution of Kenya, 2010, which entrenches the right of access to information as a justiciable and enforceable fundamental right. Article 35(1) provides in peremptory terms that “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.” Article 35(3) further imposes a positive obligation upon the State to publish and publicize any important information affecting the nation. 21. The constitutional text is deliberate and unqualified. It does not predicate access upon the demonstration of special interest, exceptional circumstances, or prior exhaustion of administrative recourse. The right is expressed in mandatory language and is binding upon all State organs and public bodies. 22. Parliament enacted the Access to Information Act (hereinafter “the ATI Act”) to give effect to Article 35. Section 4(1) of the Act reiterates that every citizen has the right of access to information held by the State, while section 4(2) commands that the Act shall be interpreted and applied on the basis of a duty to disclose and a presumption of openness. Section 9(1) requires a public entity to make a decision on an application for access to information within twenty-one days of receipt of the request. The statutory scheme therefore imposes an affirmative and time-bound obligation upon public bodies to respond, either by granting access or by issuing a reasoned refusal within the narrow confines of the exemptions set out in section 6. 23. The jurisprudence of the superior courts has consistently affirmed the centrality of this right in our constitutional order. In Katiba Institute v President’s Delivery Unit & 3 others [2017] eKLR the court https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19408/eng@2025-04-10 4

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was emphatic that once a citizen makes a request for information, the State bears a constitutional duty to respond. The Court held that: “ The Constitution is therefore clear that information held by the State is accessible by citizens and that information is available on request. What this means is that once a citizen places a request to access information, the information should be availed to the citizen without delay. Article 35 does not in any way place conditions for accessing information.” 24. The Court further observed that a public body “is bound by Article 35(1)(a) to disclose information sought,” and that failure to do so constitutes a violation of the Constitution. That pronouncement remains good law and binding authority. 25. In the present case, the Petitioner deponed, and it remains uncontroverted, that by letter dated 30th October 2017 he requested specific information from the 1st and 2nd Respondents. The Respondents do not contend that the information sought falls within the exemptions contemplated under section 6 of the ATI Act. They do not assert national security, privacy, commercial confidentiality, or any other statutory ground of refusal. 26. More significantly, they do not demonstrate that a decision whether to grant or deny access was rendered within the twenty-one days prescribed by section 9(1). In those circumstances, the omission to respond constitutes not merely administrative inertia but a breach of a constitutional and statutory obligation. 27. In Aburi v County Secretary, Meru County; Murungi & Another (Interested Parties) [2022] KEHC 11204 (KLR), the Court was confronted with a comparable factual matrix and held that the failure by a public entity to provide requested information, absent lawful justification, constituted a violation of Article 35. The Court observed that the right of access to information is ‘a facilitative right, the enjoyment of which underpins the exercise of other rights,’ and that non-disclosure, without reliance on statutory exemptions, amounts to an unconstitutional denial. 28. That reasoning applies with equal force in the present case. The Petitioner is a citizen, the Respondents are public bodies, and the information sought pertains to official investigations and records within their custody. In the absence of any lawful justification for refusal, the Petitioner’s entitlement is manifest and enforceable. 29. The Respondents, however, urge this Court to decline jurisdiction on the basis that the Petitioner failed to exhaust the mechanisms provided under sections 14 and 22 of the ATI Act, namely review by the Commission on Administrative Justice. It is indeed a settled principle that where Parliament has provided a specific procedure for redress, that procedure ought, in appropriate cases, to be followed. In Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others the court stated as follows: “ It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts is invoked. Courts ought to be fora of last resort and not the first port of call…” 30. That principle embodies the doctrine of exhaustion, as anchored in Article 159(2)(c) of the Constitution. It is, however, well established that the doctrine is not absolute and must be applied with due discernment, particularly where fundamental rights are at stake. In Communications Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others the Supreme Court articulated the doctrine of constitutional avoidance, noting that a constitutional issue should not be determined https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19408/eng@2025-04-10 5

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where a matter may properly be resolved on another basis. However, the Court did not hold that constitutional jurisdiction is automatically ousted whenever a statutory remedy exists. 31. In Katiba Institute v Presidents’ Delivery Unit (supra) specifically addressed the interplay between Article 35 and the ATI Act and rejected the contention that resort to the Commission on Administrative Justice was a condition precedent to approaching the High Court. The Court observed that Article 165(3)(b) vests the High Court with unlimited original jurisdiction to determine whether a right has been denied, violated or infringed, and that no provision of the ATI Act expressly ousts or restricts that jurisdiction. The court held: “ …I have read the Act but could not trace a provision making a report to CAJ a condition precedent to triggering the jurisdiction of this Court to deal with petitions filed seeking to challenge violations of the right to access information under Article 35 of the Constitution. This Court has unlimited jurisdiction under Article 165(3)(b) to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened. The respondent contention that the petition is premature is therefore untenable.” 32. To compel a Petitioner to first approach the Commission in every instance would, in the Court’s words, be “unsustainable,” particularly where the gravamen of the complaint is an alleged violation of a constitutional right. 33. I am persuaded by the reasoning in Katiba Institute v Presidents’ Delivery Unit supra. Section 14 of the ATI Act provides that an applicant ‘may’ apply to the Commission for review; the language is clearly permissive, not mandatory. There is no express statutory provision barring a citizen from invoking the jurisdiction of the High Court under Articles 22 and 23 of the Constitution. On the contrary, section 23 of the Act contemplates enforcement of Commission decisions in the High Court, thereby affirming, rather than curtailing, the Court’s constitutional role. To interpret the Act as imposing an absolute bar would require clear and unambiguous statutory language, which is plainly absent. 34. Moreover, the present complaint is not merely about dissatisfaction with the content of a refusal, it concerns a complete failure to respond within the statutory period. To insist upon exhaustion in such circumstances would risk reducing Article 35 to a procedural labyrinth, permitting public bodies to evade constitutional scrutiny through silence. Constitutional rights cannot be rendered illusory by administrative inaction. Where, as here, the violation alleged is direct and continuing, this Court’s jurisdiction is properly invoked. 35. This court thus finds that the Petitioner’s claim under Article 35 is well-founded. The Respondents were under a constitutional and statutory duty to respond to the request dated 30th October 2017 within twenty-one days, either by granting access or by providing a reasoned refusal grounded in section 6 of the ATI Act. Their failure to do so amounts to a violation of the Petitioner’s right of access to information. 36. In considering whether the Petitioner is entitled to the reliefs sought, including declaratory orders, extension of parental responsibility, and an award of general and exemplary damages, the Court must carefully assess both the factual matrix and the applicable legal framework. While the Petition raises serious allegations regarding the welfare of the minor and the conduct of the Respondents, the evidence before the Court does not justify the extraordinary remedies sought beyond the grant of access to information. Declaratory relief is ordinarily granted to clarify or affirm rights where a legal wrong has been established or where the legal status of a party requires judicial determination. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19408/eng@2025-04-10 6

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37. In this case, the Petition has succeeded only in establishing a breach of Article 35 of the Constitution relating to access to information. There is no evidence before the Court demonstrating that the Respondents have wilfully violated other constitutional or statutory duties in a manner warranting general or exemplary damages, nor is there sufficient proof that the minor’s welfare continues to be imperiled in a manner that would justify judicial extension of parental responsibility beyond the statutory or lawful bounds. 38. The principle of judicial restraint requires that reliefs be proportionate to the violations established. Courts have consistently held that general and exemplary damages are appropriate only where there is clear proof of egregious conduct, bad faith, or deliberate flouting of constitutional duties, as articulated in Githongo v Attorney General [2015] eKLR and reinforced in Republic v Kenya Anti-Corruption Commission ex parte Robert Ouko [2014] eKLR. In the absence of such evidence, the Court is not entitled to speculate or provide relief on the basis of potential or unquantified harm. 39. In considering the Petitioner’s request for an extension of parental responsibility beyond the minor’s eighteenth birthday, this Court is mindful that parental responsibility under Kenyan law ordinarily ceases when a child attains majority. Section 28(1) of the Children Act, Cap 141, as amended, provides that parental responsibility may only be extended where the Court is satisfied that special circumstances exist with regard to the welfare of the child. The legislation contemplates exceptional cases where continued parental oversight is necessary to safeguard the child’s welfare, particularly in matters of ongoing education, health, or other circumstances adversely affecting the child’s development. In CM v SWA [2019] KEHC 1900 (KLR), the High Court recognised that such an extension could be granted where the child, although over 18, required ongoing parental guidance due to special circumstances, such as continuing formal education or incapacitation. 40. Applying the law to the facts of the present case, the Court notes that the Petitioner’s daughter, HBM, although the subject of serious historical grievances regarding alleged defilement and mismanagement by state institutions, has not adduced evidence that she remains in circumstances warranting continued parental responsibility beyond 18. There is no factual matrix demonstrating that she is incapacitated, dependent on her father for health or educational reasons, or otherwise unable to exercise her rights as an adult. The Petitioner’s submissions regarding her past experiences, while deeply concerning, relate to events that predate her attaining majority and do not establish ongoing exceptional circumstances that the law contemplates for the extension of parental responsibility. The mere fact of prior neglect by state authorities or alleged mismanagement of her welfare does not automatically engage Section 28, the statutory requirement of special circumstances must be contemporaneous and demonstrably necessary for the protection of the child’s welfare. 41. Further, the Court observes that granting extended parental responsibility in these circumstances would not only depart from the clear statutory scheme under the Children Act but would also risk creating a precedent whereby any historical grievance could justify indefinite parental oversight beyond legal adulthood. Such a construction would undermine the principle that attaining the age of 18 confers full legal capacity and autonomy to the child, as recognised under the Constitution and relevant legislation. In CM v SWA supra, the Court explicitly grounded the extension on present and demonstrable welfare needs, in the absence of such evidence here, the statutory threshold is not met. 42. Accordingly, while the Court fully acknowledges the Petitioner’s genuine concern for his daughter’s welfare and the serious nature of the historical violations of her rights, the law is clear that parental responsibility beyond majority can only be justified by current necessity and not by past grievances. On the evidence before the Court, the Petitioner has not demonstrated the requisite special circumstances https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19408/eng@2025-04-10 7

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envisaged under Section 28 of the Children Act. Consequently, the request to extend parental responsibility is unmerited and must be declined. 43. For the avoidance of doubt, while the Court affirms the Petitioner’s entitlement to the information requested and underscores the importance of enforcing Article 35, the grant of any additional declaratory relief, extension of parental responsibility, or award of general and exemplary damages is neither supported by the evidence nor by law. The Petitioner’s prayers in these respects are therefore denied, and the Court confines its orders solely to those necessary to vindicate the constitutional right of access to information. 44. In light of the foregoing, this Court makes the following orders: i. The Petition dated 12th June 2019 has merit. ii. A declaration is hereby issued that the failure by the 1st and 2nd Respondents to provide the information sought under Article 35 of the Constitution, as read together with sections 4 and 8 of the Access to Information Act, 2016, pursuant to the Petitioner’s request dated 30th October 2017, constitutes a violation of the Petitioner’s right of access to information. iii. An order of mandamus is hereby issued compelling the 1st and 2nd Respondents to forthwith, and at their own cost, provide the information sought by the Petitioner vide his letter dated 30th October 2017. iv. The Petitioner shall have the costs of the Petition. Orders accordingly. File closed accordingly DATED, SIGNED, AND DELIVERED VIRTUALLY THIS 10th DAY OF APRIL 2025. ………………………………………………………………………….. BAHATI MWAMUYE JUDGE In the presence of : Counsel for the Petitioner – No appearance Counsel for th 1st and 2nd Respondents – Ms. Opio hb Ms. Robi Court Assistant – Ms. Lwambia https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19408/eng@2025-04-10 8

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