MOMBASA, Kenya — The Court of Appeal sitting in Mombasa has dismissed an appeal by the Attorney General and upheld a High Court decision ordering the disclosure of documents related to the Standard Gauge Railway (SGR) project.
The ruling, delivered on May 15, 2026, reinforces the constitutional right of access to information under Article 35 of the Constitution.
Court affirms right to access State information
The bench comprising Justices Murgor, Laibuta, and Ngenye upheld the judgment of Justice Mativo, which had ordered the State to release key SGR documents.
The court said access to State-held information is a constitutional right. However, it added that any limitation must be strictly justified under Article 24 of the Constitution.
Importantly, the judges held that the burden of proving exemption lies with the State, not citizens seeking information.
Dispute over SGR documents
The case was filed by Khelef Khalifa and Wanjiu Gikonyo, who sought disclosure of SGR financing and procurement records.
The requested documents included contracts, feasibility studies, environmental assessments and bilateral agreements linked to the Government’s partnership with China.
The petitioners argued that the project, costing more than USD 4.5 billion in public funds and loans, should be subject to full public accountability.
State cited secrecy and national security
The Attorney General opposed disclosure, citing national security concerns, foreign relations sensitivities, and confidentiality clauses under the Official Secrets Act and the Access to Information Act.
State agencies also argued that releasing the documents could harm Kenya’s diplomatic and commercial interests.
However, the Court of Appeal rejected these arguments, describing them as general and unsupported by evidence.
Court rejects blanket secrecy claims
The judges ruled that national security claims must be specific, evidence-based, and proportionate.
They stressed that secrecy cannot be used to avoid accountability or shield public projects from scrutiny.
“The State must demonstrate a real and identifiable threat,” the court noted in its reasoning.
Transparency overrides confidentiality clauses
The court also dismissed reliance on confidentiality clauses in the SGR contracts.
It held that contractual secrecy cannot override constitutional obligations, especially where public funds and debt are involved.
The judges further noted that the SGR project had already been completed, reducing any justification for continued secrecy.
Constitutional shift to openness
The ruling emphasized that Kenya’s 2010 Constitution transformed governance from secrecy to transparency.
It reaffirmed that Article 35 must be read together with the Access to Information Act, which places the burden of proof on the State when withholding information.
The court also upheld the “motive-blind” principle, stating that citizens are not required to explain why they request public information.
Legal significance
The Court of Appeal affirmed that public interest outweighs blanket confidentiality claims, particularly in major infrastructure projects financed by taxpayers.
It upheld the High Court decision in full and ordered each party to bear its own costs.
The judgment sets a strong precedent on access to information, strengthening transparency obligations for State agencies handling large public projects.
