The Court emphasized that access to Government information is a fundamental democratic right. He ruled that the burden of proof of any exemption lay with the State, noting that such restrictions should be interpreted narrowly. The lawsuit was filed with the Supreme Court in 2021 (Constitutional Petition No. E032 dated 2021), in which two civil rights defenders demanded full disclosure of information about railway financing, procurement contracts, and bilateral agreements with the Chinese government.
The applicants argued that, since the project was funded by public funds and taxpayer-guaranteed loans, the exclusion of feasibility studies, environmental assessments and contracts from public control was unjustified. Despite official requests made in December 2019 and May 2021, the Kenya Railways Corporation and the Attorney General's Office have repeatedly denied access, citing the Official Secrets Act, confidentiality provisions, national security concerns, and sensitive international relations issues.
In the Appeals Court, Attorney General Oduor insisted that disclosing the information would harm national security, diplomatic relations with China, and expose the government to legal and financial risks. However, the defendants, who were supported by the Katiba Institute, argued that the State had not provided concrete evidence of potential damage. The Administrative Justice Commission (CAJ) also stated that the Law on State Secrets cannot repeal article 35 of the Constitution, which guarantees the right to information. The European Court of Human Rights has described the Access to Information Act (2016) as a vital transition from a culture of secrecy to a culture of transparency and accountability.
The appeals court rejected the state's «sweeping denials», ruling that the government must provide substantial evidence rather than vague affidavits to justify withholding information. The Court also confirmed that citizens are not required to justify the reasons why they request government information, since the State acts only as the custodian of such data. Consequently, the court upheld the High Court's original full disclosure order, ruling that each party should bear its own costs due to the significant public interest at stake.
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