The Court of Appeal in Mombasa has dismissed the Attorney General’s appeal, upholding a ruling that the State unlawfully withheld SGR project documents.
The court reaffirmed that access to public information is a constitutional right under Article 35, stressing that secrecy claims must meet strict legal thresholds and cannot override transparency in publicly funded projects.
In a judgment delivered on May 15, 2026, a bench comprising Justices Murgor, Laibuta, and Ngenye upheld the High Court’s finding that the State’s refusal to release key SGR documents was unlawful and unconstitutional.
The court affirmed that access to State-held information is a constitutional and democratic entitlement, subject only to narrowly defined limitations.
The dispute stemmed from a petition filed by Khelef Khalifa and Wanjiru Gikonyo seeking disclosure of extensive records relating to the SGR project, including financing agreements, procurement contracts, feasibility studies, environmental impact assessments, operational agreements, and bilateral arrangements between Kenya and China.
The petitioners argued that despite the project costing more than Sh580.5 billion in public funds and loans guaranteed by Kenyan taxpayers, the documents remained inaccessible.
They had made formal requests in December 2019 and May 2021, which were declined by Kenya Railways Corporation and the Office of the Attorney General.
The refusals cited confidentiality clauses, national security concerns, and exemptions under the Official Secrets Act and the Access to Information Act, 2016.
The Commission on Administrative Justice, also involved in the case, argued that the Official Secrets Act must be interpreted in line with Article 35 of the Constitution.
It emphasized that Section 29 of the Access to Information Act marked a shift “from a culture of secrecy to one of openness, transparency, and accountability.”
In its ruling, the Court of Appeal stressed that there are not “two systems of law” governing access to information, but a single constitutional framework anchored in Article 35.
It held that the mere invocation of state secrecy or reliance on the Official Secrets Act cannot, without evidence, justify withholding information.
The court further ruled that the burden of proof lies squarely on the State to demonstrate why information should be withheld.
It rejected what it termed “blanket denials” based on national security or foreign relations, stating that such claims must be supported by specific and substantive evidence.
The judges also found inconsistencies in the State’s handling of the request, noting conflicting positions between Kenya Railways Corporation and the Office of the Attorney General over custody of the documents.
The court concluded that these explanations were “lacking credibility and unsupported by evidence.”
On contractual confidentiality clauses cited by the State, the court ruled that such agreements cannot override constitutional obligations.
It stated that public interest in transparency outweighs confidentiality, particularly in projects funded by taxpayers and involving significant public expenditure.
The judgment also affirmed that citizens are not required to justify requests for information, upholding the “motive-blind” principle under the Access to Information Act.
The court stated that the State holds information as a constitutional custodian, not a private proprietor.
The Court of Appeal ultimately found no merit in the Attorney General’s appeal and dismissed it in its entirety, upholding the High Court’s orders compelling disclosure of the SGR documents.
It also directed that each party bear its own costs due to the public interest nature of the case.
The ruling is expected to have significant implications for government transparency and access to information in Kenya, particularly in relation to large-scale public infrastructure projects.