Adan Mohammed, Abdulle Sahara Maow, Dubane Samow, Salan Hashim & Hussein Sheikh Mohammed v Attorney General , Cabinet Secretary Ministry of Defence & Director of Public Prosecutions [2017] KEHC 940 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT GARISSA

PETITION NO. 1 OF 2017

ADAN MOHAMMED.......................................................................1ST PETITIONER

ABDULLE SAHARA MAOW...........................................................2ND PETITIONER

DUBANE SAMOW...........................................................................3RD PETITIONER

SALAN HASHIM..............................................................................4TH PETITIONER

HUSSEIN SHEIKH MOHAMMED................................................5TH PETITIONER

VERSUS

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

THE CABINET SECRETARY MINISTRY OF DEFENCE........2ND RESPONDENT

THE DIRECTOR OF PUBLIC PROSECUTIONS......................3RD RESPONDENT

RULING

1. This is a Notice of Motion dated 8th November 2017 filed by Gichuki Karuga Advocate for the petitioners. The application was brought under Article 35 (1) of the Constitution of Kenya 2010 and was filed under Certificate of Urgency. It has three prayers, one of which has been spent as follows:

1. ……..(spent)

2. That this court be pleased to issue an order to the Officer Commanding Police Station (Mandera) to avail a certified copy of the Occurrence Book (OB)Report No. 29/28/12/2015.

3. That the costs be in the cause.

2. The application has grounds on the face of Notice of Motion, which are that the certified copy of the OB entry in question was crucial to the parties to these proceedings, and that the interests of justice would be served if the orders sought were granted.

3. The application was also filed with a supporting affidavit sworn on the 8th of November 2017 by Gichuki Karuga Advocate, who deponed that the P3 Form reports and other medical documents filed herein contained several references to the said OB entry, but the petitioners lacked an actual copy of the same, whose sole custody was with OCS Mandera Police Station.

4. Though the application was served and an affidavit of service dated 14th November, 2017 was filed, no response was filed by the respondents.

5. When the application came up for hearing on 14th November, 2017 Mr. Nyaga held brief for Mr. Gichuki Karuga for the petitioners while Mr. Okemwa was present for the DPP, the 3rd respondent. Mr. Okemwa informed the court that the Attorney General was not present in court and that the party required to comply ( the OCS Mandera Police Station) was not a party in the proceedings. In response, Mr. Nyaga submitted that as the Attorney General had been served, it was not necessary for the National Police Service to be made a party in the application, and asked the court to grant the orders sought.

6. I have considered the application and perused the main petition herein. In the petition dated 10th January, 2017 the 3rd respondent is named as Director of Public Prosecutions. However, under paragraph 5 of the petition the 3rd respondent is described as the Head of The National Police Service, which seems to suggest that the 3rd respondent was meant to be the Inspector General of the Police. In my view, the Inspector General of Police should have been a party instead of the Director of Public Prosecutions (DPP).

7. Having said so, in my view the OB (Occurrence Book) held in any police station is a public document. The information therein can be provided to any interested party in court proceedings, provided the same is relevant to the proceedings. In accordance with the provisions of Article 35 of the Constitution of Kenya 2010 on access to information, though the Inspector General of the Kenya Police Service is not a party to these proceedings, the petitioners cannot be denied the right to access that information provided it is relevant to their case. I have perused the P3 forms filed in this case and the said OB entry No. 29/28/12/2015 appears therein. As such, it cannot be said that the information is irrelevant. It is my view that the information in the said OB entry is relevant in these proceedings.

8. I will thus allow the application. However, if there are any applicable copying charges to be paid, the applicants or petitioners will pay the same.

9. Consequently, I allow the application and grant prayer 2 and 3. If there are any lawful copying charges applicable, the petitioners will pay the same.

Dated and delivered at Garissa on 6th December, 2017.

George Dulu

JUDGE