'Introduction
1. The Petition dated 18th May 2022 is supported by the 1st Petitioner’s affidavit in support sworn on even date by its Executive Director, Dr. Annette Mbogoh and the 2nd Petitioner’s supporting affidavit. The Petition is also supported by supplementary affidavits dated 28th March and 15th November 2023 by Dr. Annette Mbogoh.
2. The Petitioners aver that following the roll out of Government Vision 2030, government agencies who include the Respondents herein switched their services to the online platform and in so doing ensured that government services are exclusively availed online to the exclusion of all the other alternatives.
3. The Petitioners assail this move for being disadvantageous to majority of the population in Kenya especially those in rural areas and marginalized groups who do not have access to internet or possess the requisite skills to use.
4. They faulted the government for making the transition without setting up ICT infrastructure in the whole country, educating and training to people to be able to access these services online.
5. Accordingly, the Petitioners seek the following reliefs against the Respondents:
a) A declaration that in view of the constitutional obligation for national State organs to ensure reasonable access to its services in all parts of the Republic of Kenya, for as long as government agencies are offering their services on the internet, access to the internet is a fundamental right in Kenya.
b) A declaration that the right to access the internet in Kenya should be read into the Right to life, Right to Equality and freedom from discrimination, Right to Human dignity, Freedom of expression, Right of Access to information, Freedom of association, Consumer Right, Access to justice, and Right to Fair Trial enshrined under Article 26, 27, 28, 33, 35, 46, 48, and 50 of the Constitution.
c) A declaration that internet access is essential to the enjoyment of basic human rights, thus members of the Public in all parts of the Republic of Kenya must be able to access the internet to exercise and enjoy their rights to life, Equality and freedom from discrimination, Human dignity, Freedom of expression, Access to information, Freedom of association, Consumer Right, Access to justice, and Fair Trial under Article 26, 27, 28, 33, 35, 46, 48, and 50 of the Constitution and other fundamental human rights.
d) A declaration that the State is under an obligation to provide its citizens with meaningful access to the internet to be able to benefit from the services offered to the members of the public in all parts of the Republic of Kenya on internet platforms by the Respondents and any other State agencies for as long as government agencies are offering their services to the members of the public in all parts of the Republic of Kenya predominantly on internet platforms.
e) A declaration that the right to public services provided by the State Government should be read into the Right to life enshrined under Article 26 of the Constitution respectively.
f) A declaration that the Respondents have failed to ensure meaningful access to government services to the Petitioners and members of the public who are unable to access government services on the internet on account of either being unfamiliar with ICT skills, illiterate, semi-illiterate, marginalized, and/or poor.
g) An order directed at the Respondents to carry out continuous e-literacy and e-enterprise skills basic training targeting members of the public who have no ICT skills.
h) An order directed at the Respondents to install data centers to equip members of the public to be able to access the government services offered by the Respondents on internet platforms.
i) An order directed at the Respondents to implement programs within 6 months of this Court''s judgment aimed at ensuring members of the public have alternative means to access the services of the Respondents apart from accessing their services exclusively on online systems.
j) A declaration that the Respondents have threatened and contravened Articles 10, 26( 1 ), 27, 28, 33(la), 35(1), 46(1), of the Constitution by offering a number of services to the members of the public in all parts of the Republic of Kenya exclusively on the internet and failing to consider the plight and realities of members of the public who are unable to access their services on the internet on account of either being unfamiliar with ICT skills, illiterate, semi-illiterate, marginalized, and/or poor.
k) A declaration that the Respondents particularly the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 18th, 20th, 21st, 22nd, 23rd, 24th, 25th, 26th, 27th, 28th, 29th, 31st and 32nd Respondents have threatened and contravened Article 6(3), of the Constitution by offering a number of services to the members of the public in all parts of the Republic of Kenya exclusively on the internet and failing to consider the plight and realities of members of the public who are unable to access their services on the internet on account of either being unfamiliar with ICT skills, illiterate, semi-illiterate, marginalized, and/or poor.
l) A declaration that the Respondents, particularly the 1st and 9th Respondents, have threatened and contravened Articles 36(1) of the Constitution by offering services relating to the registration, and other dealings of different forms of business associations to be exclusively done on internet platforms by members of the public in all parts of the Republic of Kenya.
m) A declaration that the Respondents, particularly the 32nd Respondent threatened and contravened Articles 48, and 50(1) of the Constitution by limiting and restricting the filing of pleadings and Court attendance by members of the public in a number of Courts, to be predominantly done on internet platforms.
n) A declaration that the Respondents, particularly the 1st to 31st Respondents have threatened and contravened Article 129, of the Constitution by offering a number of their services to members of the public in all parts of the Republic of Kenya exclusively on internet platforms and failing to consider the plight and realities of members of the public who are unable to access their services on the internet on account of either being unfamiliar with ICT skills, illiterate, semi-illiterate, marginalized, and/or poor.
o) A declaration that the Respondents, particularly the 20th to 30th Respondents have threatened and contravened Articles 174, and 176(2) of the Constitution by centralizing provision of some of its key services to members of the public in all parts of their regions predominantly on internet platforms.
p) A declaration that the Respondents, particularly the 18th Respondent have threatened and contravened Article 249(1), of the Constitution by offering a number of their services to members of the public in all parts of the Republic of Kenya exclusively on internet platforms and failing to consider the plight and realities of members of the public who are unable to access their services on the internet on account of either being unfamiliar with ICT skills, illiterate, semi-illiterate, marginalized, and/or poor.
q) This being a matter of public interest there be no orders as to costs.
r) Any other order(s) as this Court shall deem just.
Petitioners’ Case
6. On 10th June 2008, Kenya’s Vision 2030 was launched by the late President Mwai Kibaki with the goal of transforming Kenya into a rapidly industrialized middle-income nation by 2030. To commence this journey, the Vision Delivery Board was appointed by the President on 13th February 2009.
7. With the aim of transforming connectivity and transmission in the Country, the East African Marine System (TEAMS) fibre optic cable arrived in Mombasa in 2009. In the same year, SEACAOM, a privately funded fibre optic project, also arrived in Mombasa. Fundamentally, this set the stage for internet connectivity and communications in the Kenya. The government has over the years since then, made and implemented public policy decisions, laws, and programs to promote the use of ICT in the country.
8. The Petitioners aver that the Respondents have developed online systems for delivery of their services to the public in all parts of the Kenya, predominantly over internet platforms. In fact, it is stated that some of the government services are now exclusively only offered online.
9. Despite the great strides in this area, the Respondents are accused of failing to provide the public with meaningful access to the internet to enable it benefit from these services.
10. The Petitioners contend that the reality is that most of the Kenyan population lack the necessary ICT skills, lack infrastructure to access the internet, including laptops, desktop computers, phones and tablets. Additionally, many have no access, or have limited access and cannot afford internet services.
11. For context, the 1st Petitioner illustrates this through the range of services offered by the 1st Respondent which include: lodging applications for registration of marriages, licensing of Ministers of Faith, Application for Certificate of No Impediment to Marriage, Licensing of Ministers of Faith to be appointed as marriage officers, application for a Certified Copy of marriage certificates and application for issuance of marriage books to the marriage officers for purposes of solemnization solely on its online web portal: https://oag.ecitizen.go.ke/dashboard.
12. Similarly, the 2nd Respondent offers services on access to scholarship information, form one student’s selection, ministry training projections and information of technical and vocational education and training management information system on its online platform: http://www.education.go.ke. Comparable illustrations are further outlined in the Supporting Affidavit with reference to the other Respondents and the services they exclusively offer on their online platforms.
13. It is further deponed that according to the Kenya National Bureau of Statistic, 2019 Kenya Population and Housing Census Report, only 11.3% of the rural population have access to the internet compared to the 39.8% in the urban areas. Further, in the rural areas only 4.4% of the people have access to a desktop computer, laptop and tablet.
14. In a further Report dubbed ‘A review of the status of e-government implementation in Kenya’, it was established that the technological era has resulted in digital exclusion of some vulnerable groups such as the physically challenged, those living in rural areas, the aged and illiterate. Equally, it was noted that most Huduma Centres are found in the urban areas.
15. It was thus recommended therein that the government should empower these groups so that they can participate in online activities they offer by deploying more resources to ensure that citizens get access to the services.
16. The 2nd Petitioner in his own lived experience, narrates that some intruders sought to evict him from his parcel of land Nairobi/Block 105/13683.This caused him to seek the 1st Petitioner’s assistance. He depones that the 1st Petitioner assisted him prepare the letter dated 2nd November 2021 to issue to the Lands Registrar.
17. He depones that when he arrived at the office, he was directed to make an application online to which he informed them that he did not possess any ICT skills to be able to do so. In addition, he informed them that he does not have an email address and also does not have resources to make the online application.
18. He avers that the land office informed him that they would do the application for him if he had Ksh.5000, which he did not. His continuous visits to the land office are said to have been futile. In the end, he states that he was advised to go to a cyber café to make the application. He was charged Ksh.3000 by the cyber café to do the application.
19. He informs that thereafter he was issued with the search on 20th May 2022 although the Certificate had been generated on 3rd December 2021. He asserts that these are some of the challenges Kenyans are facing trying to access government services exclusively offered online.
20. The Petitioners in light of these, fault the Respondents for failing to implement initiatives and programs aimed at ensuring that members of the public seeking services, especially those who may not have access to the necessary infrastructure or are unfamiliar with ICT skills such as the 2nd Petitioner, have alternative means to access their services apart from accessing their services on their online web portals and websites. It is stated that the 2nd Petitioner like many Kenyans, has to pay for these services for instance through a cybercafé so as to access these services.
21. According to the Petitioners, the Respondents have failed to carry out sufficient e-literacy and e-enterprise skills basic training for members of the public who have no ICT skills. Likewise, that they have failed to install data centers countrywide to equip members of the public to access their services offered on internet platforms prior to them offering their services exclusively there. Moreover, it is alleged that the Respondents have failed to implement initiatives and programs aimed at ensuring members of the public have alternative means to access the services of the Respondents apart from accessing the services on their online systems.
22. In like manner, the Petitioners assert that the Respondents have also failed to implement initiatives and programs that will enable members of the public who have challenges in accessing services, still access the services. It is stated that the Respondents have failed to accord meaningful participation and training to members of the public who are unable to access government services on the internet on account of lacking ICT skills, being illiterate, marginalized, poor, prior to offering their services exclusively online.
23. Additionally, it is stressed that the Respondents’ assertions that they have made an attempt to offer resources to ensure that citizens get access to these services so as to access online services, is false and misleading. Furthermore, that no demonstration is made by the Respondents to ascertain that they have taken these necessary steps.
24. Consequently, the Petitioners postulate that by offering services over the internet without alternatives and failing to consider the plight and realities of the members of the public who are unable to access these services on the internet, the Respondents have threatened and contravened Articles 6(3), 10, 26(1), 27, 28, 33(1)(a), 35(1), 36(1), 46(1), 48, 50, 129, 174, 176(2) and 249(1) of the Constitution.
25. It is underscored that the Respondent have a duty to take measures to ensure that the members of the public have relevant education and training; have opportunities to associate, be represented and participate in political, social, economic and other spheres of life; access employment; and are protected from exploitation as they access services offered by the Respondents on their online web portals or websites.
Respondents’ Case
26. The 1st, 3rd, 4th, 5th, 6th, 7th, 9th, 12th, 14th, 16th, 19th, 20th, 21st 22nd ,23rd, 24th, 25th, 29th, 30th, 31st and 32nd Respondents’ responses and submissions are not in the Court file or Court Online Platform (CTS).
2nd Respondent’s Case
27. The 2nd Respondent, through Principal Secretary, Dr. Belio Kipsang filed a Replying Affidavit sworn on 24th April 2023 in response to the Petition.
28. He stated that the Ministry of Education is responsible for implementing the government’s obligation of ensuring every person’s right to education under Article 43(1)(f) of the Constitution and children’s right to free and compulsory basic education under Article 53(1)(b) of the Constitution, is accessible to all.
29. He depones that Sessional Paper No.1 of 2019, a policy framework for reforming education and training for sustainable development in Kenya, underscores the government’s commitment through their Ministry to provide access, equity, quality and relevant education and training to its citizens including the marginalized.
30. He depones that in this regard the Ministry of Education has decentralized its services to the County, sub-county and school levels by ensuring that its services are accessible both online and physically to all citizens.
31. On this premise, he avers that the Petition is baseless, misconceived and devoid of any merit, as such so should be dismissed.
10th Respondent’s Case
32. This Respondent through its Chief Executive Officer, Stanley Kamanguya filed its Replying Affidavit sworn on 20th April 2023.
33. He deponed that the 10th Respondent a State Corporation under the Ministry of Information Communication and Digital Economy was established in August 2013 with the task of rationalizing and streamlining the management of all government ICT so as to enable efficient and effective access in the delivery of public service.
34. He depones that at the establishment of the 10th Respondent, there was 4300KM of fibre across the country covering all provincial headquarters and six key border towns. After its establishment, the 10th Respondent between 2014 and 2017 laid an additional 2100KM of fibre connecting all the 47-county headquarters. In addition, in 2017, an additional 2500KM of fibre was laid covering 290 sub county headquarters. Furthermore, he depones that an additional 3436 KM of fibre have been laid under the Government Common Core Network, Universal Health Care Connectivity and the County Connectivity Project.
35. It is further deponed that the 10th Respondent between 2017 and 2021 distributed 1.2 million devices to 22,891 primary schools with the goal of equipping the students with ICT skills. At the moment, he states that the 10th Respondent is undertaking a project in partnership with UNICEF to connect schools with internet and has so far connected 19 schools.
36. As well, he informs that markets and Technical and Vocational Education and Training (TVETs) have been connected with internet. Equally, he depones that the 10th Respondent in collaboration with other government agencies is currently undertaking a project dubbed "Jitume" aimed at connecting TVETs institutes to the internet and providing training on digital skills and online jobs.
37. He further states that the 10th Respondent has undertaken various activities to build capacity and literacy of citizens in ICT. In this regard, he avers that it has launched a portal for registration of citizens aimed at training 20 million citizens on ICT at: https://smartacademy. icta.go.ke/basic-skills-registration.
38. He informs that the 10th Respondent continues to lay fibre and has commenced the process of laying 100,000 kilometers of fibre in the next 5 years. Likewise, it intends to roll out 25,000 hot spots throughout the Country to boost the public’s access to internet and to set up 14,500 digital labs to increase connectivity. He notes that the 10th Respondent is providing connectivity to Telecommunications Service providers through the National Fibre Backbone to provide connectivity to homes and other areas so as to reduce the cost of connectivity.
39. He in view of this contends that the Petitioners filed this Petition without giving regard to the efforts that have been undertaken in the nation’s ICT area and existing success stories. For this reason, he argues that the Petition is premature and fails to disclose any breach against the 10th Respondent.
11th Respondent’s Case
40. This Respondent through its Deputy Executive Director, George Nyakweba filed its Replying Affidavit sworn on 12th June 2023.
41. He depones that the 11th Respondent offers its services both online through its email: info@copyright.go.ke and physically at its offices located at NHIF Building in Upper hill, Nairobi. He notes that the 11th Respondent also engages people through its X platform, Facebook, Instagram and YouTube.
42. He informs that on 14th January 2020, the then President, Uhuru Kenyatta directed the Ministry of ICT to work with all industry stakeholders so as to stream and solve the legacy challenges in the music industry, through the use of ICT, by creating a National Rights Registry and royalties'' management system for Collective Management Organisations.
43. He avers that in order to operationalize the amendments made to the Copyright Act in 2019 and 2022, the 11th Respondent created the National Rights Registry (NRR) portal, which is the central repository for collating details pertaining to ownership of various copyright works. It is used by copyright holders to allow them register, view and download their copyright certificates. This portal is also available to the public on: nrr.copyright.go.ke.
44. He states that in terms of enforcement of copyright and related rights, the 11th Respondent has a legal and compliance department which the public can seek free legal advice from by making a physical visit to their offices or making an appointment online through the website at copyright.go.ke. Additionally, he depones that members of the public who are desire to report a case on infringement of copyright can either visit their offices to lodge their complaint or write a formal complaint addressed to the Executive Director.
45. Also, he states that the 11th Respondent is mandated to devise and implement training programmes on copyright and related rights. He notes that this is done by reaching out to creatives from different parts of the country and organizing training sessions where they are enlightened about copyright and related rights.
46. In view of the foregoing, he argues that the Petitioners have failed to acknowledge these ICT efforts as adopted by the 11th Respondent. He argues thus that the Petition does not disclose with precision any breach on the 11th Respondent’s part.
13th Respondent’s Case
47. On 15th September 2022, the 13th Respondent swore its Replying Affidavit through its officer, Diana Akivaga.
48. She asserts that the Petitioners case against the 13th Respondent lacks clarity and precision in setting out the violation against it. In that the Petitioners have failed to show how this Respondent failed to perform its constitutional duties.
49. She informs that the 13th Respondent has undertaken several steps to ensure it meets its obligation such as: setting up 38 service centers and is presently in 52 Huduma Centers; in addition during the 2021 filing season, the contact centre and huduma centres extended their opening hours from 2nd June to 30th June 2022 which was communicated through all channels including newspapers and radio; moreover this Respondent has communication and education initiatives executed across the country to enhance its reach to taxpayers in addition to providing customer support and education such as offsite.support (Jaza Mapema); likewise this Respondent has ensured continuous direct communication via letters and emails to employers, taxpayers and tax agents; and also it introduced various digital communications such as the KRA website and google ads.
50. In addition to the above, she depones that the 13th Respondent has introduced building sweeps which entails visiting buildings with large number of occupants in towns such as KICC, to sensitize them on returns filing and offer onsite filling support. Likewise, it conducts street storms aimed at creating awareness around income tax filing and offering support to persons wishing to file their returns. In addition, it has a Mobile Tax Unit which is used across the country, to offer filing support outreach to tax payers.
51. On this premise, she contends that the issues canvassed against the 13th Respondent in this Petition are baseless and unfounded as it is evident that it has put in place mechanisms to provided equal access and opportunities to all persons.
52. That said, she avers that the realization of the right to access internet which is a socio-economic right is subject to the availability of resources at the State’s disposal. It is noted that no reasonable cause has been demonstrated neither the existence of the purported circumstances to warrant issuance of the sought relief and moreover which would be prejudicial to the 13th Respondent. As such, the Petition is deemed to be fatally defective and so should be struck out.
15th Respondent’s Case
53. The Acting Chief Executive Officer, Dr. Samson Kuhora for the 15th Respondent filed his Replying Affidavit sworn on 12th April 2023.
54. He depones that the 15th Respondent has 105 fully autonomous branches and satellite offices, in addition to being present in 47 Huduma Centers across the Country. He informs that each of this offer comprehensive customer service both in person and digitized services.
55. He depones that none of the 15th Respondent’s services are exclusively digitized. He states that all the services available digitally are also available in each of these offices and centres. Furthermore, he avers that this Respondent has a user-friendly website: http:/www.nhif.or.ke where members of the public can access information about the Fund. This service is also available through a mobile app which is available for free.
56. Moreover, he informs that this Respondent has developed a USSD code *155# which allows for self-registration and access to various services even without internet access. Similarly, there is a toll-free line 0800720601 which can also be utilized in addition to its social media platforms.
57. Considering this, he asserts that the 15th Respondent has made great efforts to increase its reach to the public and ensure optimum service delivery to Kenyans both digitally and in-person. He argues as such that the instant Petition was lodged without regard to all these efforts. The Petition is thus deemed premature and as failing to disclose any breach.
17th Respondent’s Case
58. The Director and General and Deputy Director in charge of Licensing, George Njao filed his Replying Affidavit sworn on 10th May 2023.
59. He avers that the 17th Respondent’s services are accessible through a hybrid model, both online and through physical services dependent on the type of service required.
60. He informs however that majority of their services are online based such as, vehicle registration though once done a registered owner collects the same physically. Similarly, motor vehicle inspection is done online but the process conducted physically at their inspection centres. Equally, the driving test and licenses booking are done online but examination conducted physically. He makes known that prior to the digital migration so as to bring its services closer to the people, they had long queues just to access these services.
61. He depones that the 17th respondent has 17 regional offices across the Country where the services can be accessed easily. They also have offices in all the Huduma Centers in Kenya.
62. To this end, he argues that the Petitioners have not demonstrated with preciseness the specific provisions of the Constitution purported to have been violated and demonstrated how the 17th Respondent violated them.
18th Respondent’s Case
63. The 18th Respondent through its Chief Executive Officer, Simon K. Rotich filed a Replying Affidavit sworn on 18th July 2022. On an introductory note, he states that the instant Petition is misinformed and contains misrepresentation of facts. For that reason, he contends that the Petitioners ought to have sought the requisite information before filing this suit.
64. He depones that the 18th Respondent whose mandate revolves around recruitment, appointments and hearing of appeals, advertises all job vacancies in newspapers and on its website in accordance with the provisions of Section 37 of the Public Service Commission Act. He informs that the Act also requires that these advertisements be done on radio. He informs however due to its budgetary allocation it has not been able to achieve radio advertising. That said, job applicants have the option of delivering their application physically to their offices, by post or by filing an online application form.
65. He informs that up until 2020, the 18th Respondent always conducted physical interviews unless where one is out of the country. Thereafter, the Respondent commenced virtual interviews either online, through telephone calls and where necessary physical interviews. He makes known that the virtual interviews have been well received particularly by candidates from far-flung areas. He affirms that the Commission nonetheless is always willing, able and ready to conduct physical interviews for any person who is not able to participate in a virtual interview.
66. In addition to this, he depones that this Respondent commenced the process of establishing remote ICT Centres that will enable applicants and candidates with no access to internet and other infrastructure to use the Commission''s ICT Centres to apply for advertised jobs and also to attend the virtual interviews. He informs that these will be operationalized soon.
67. He states that with regard to county appeals, the Public Service Commission (County Appeals Procedures) Regulations, 2022 provides for filing of appeals either physically or by post or email. He states that where this Respondent finds it necessary to hear an appeal orally, the same is heard physically at their offices in Nairobi. He informs in fact that no Appeal has ever been heard virtually.
68. On this basis, he asserts that the allegations made against the 18th Respondent are baseless and unfounded as the Commission has put in place mechanisms to provide equal access and equal opportunity to all persons. For this reason, he argues that the 18th Respondent has been wrongly sued in this matter and Petition lacks merit.
26th Respondent’s Affidavit
69. The 26th Respondent through its Director Legal Services, Julius Waliaula filed a Replying Affida
[...truncated]
1. The Petition dated 18th May 2022 is supported by the 1st Petitioner’s affidavit in support sworn on even date by its Executive Director, Dr. Annette Mbogoh and the 2nd Petitioner’s supporting affidavit. The Petition is also supported by supplementary affidavits dated 28th March and 15th November 2023 by Dr. Annette Mbogoh.
2. The Petitioners aver that following the roll out of Government Vision 2030, government agencies who include the Respondents herein switched their services to the online platform and in so doing ensured that government services are exclusively availed online to the exclusion of all the other alternatives.
3. The Petitioners assail this move for being disadvantageous to majority of the population in Kenya especially those in rural areas and marginalized groups who do not have access to internet or possess the requisite skills to use.
4. They faulted the government for making the transition without setting up ICT infrastructure in the whole country, educating and training to people to be able to access these services online.
5. Accordingly, the Petitioners seek the following reliefs against the Respondents:
a) A declaration that in view of the constitutional obligation for national State organs to ensure reasonable access to its services in all parts of the Republic of Kenya, for as long as government agencies are offering their services on the internet, access to the internet is a fundamental right in Kenya.
b) A declaration that the right to access the internet in Kenya should be read into the Right to life, Right to Equality and freedom from discrimination, Right to Human dignity, Freedom of expression, Right of Access to information, Freedom of association, Consumer Right, Access to justice, and Right to Fair Trial enshrined under Article 26, 27, 28, 33, 35, 46, 48, and 50 of the Constitution.
c) A declaration that internet access is essential to the enjoyment of basic human rights, thus members of the Public in all parts of the Republic of Kenya must be able to access the internet to exercise and enjoy their rights to life, Equality and freedom from discrimination, Human dignity, Freedom of expression, Access to information, Freedom of association, Consumer Right, Access to justice, and Fair Trial under Article 26, 27, 28, 33, 35, 46, 48, and 50 of the Constitution and other fundamental human rights.
d) A declaration that the State is under an obligation to provide its citizens with meaningful access to the internet to be able to benefit from the services offered to the members of the public in all parts of the Republic of Kenya on internet platforms by the Respondents and any other State agencies for as long as government agencies are offering their services to the members of the public in all parts of the Republic of Kenya predominantly on internet platforms.
e) A declaration that the right to public services provided by the State Government should be read into the Right to life enshrined under Article 26 of the Constitution respectively.
f) A declaration that the Respondents have failed to ensure meaningful access to government services to the Petitioners and members of the public who are unable to access government services on the internet on account of either being unfamiliar with ICT skills, illiterate, semi-illiterate, marginalized, and/or poor.
g) An order directed at the Respondents to carry out continuous e-literacy and e-enterprise skills basic training targeting members of the public who have no ICT skills.
h) An order directed at the Respondents to install data centers to equip members of the public to be able to access the government services offered by the Respondents on internet platforms.
i) An order directed at the Respondents to implement programs within 6 months of this Court''s judgment aimed at ensuring members of the public have alternative means to access the services of the Respondents apart from accessing their services exclusively on online systems.
j) A declaration that the Respondents have threatened and contravened Articles 10, 26( 1 ), 27, 28, 33(la), 35(1), 46(1), of the Constitution by offering a number of services to the members of the public in all parts of the Republic of Kenya exclusively on the internet and failing to consider the plight and realities of members of the public who are unable to access their services on the internet on account of either being unfamiliar with ICT skills, illiterate, semi-illiterate, marginalized, and/or poor.
k) A declaration that the Respondents particularly the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 18th, 20th, 21st, 22nd, 23rd, 24th, 25th, 26th, 27th, 28th, 29th, 31st and 32nd Respondents have threatened and contravened Article 6(3), of the Constitution by offering a number of services to the members of the public in all parts of the Republic of Kenya exclusively on the internet and failing to consider the plight and realities of members of the public who are unable to access their services on the internet on account of either being unfamiliar with ICT skills, illiterate, semi-illiterate, marginalized, and/or poor.
l) A declaration that the Respondents, particularly the 1st and 9th Respondents, have threatened and contravened Articles 36(1) of the Constitution by offering services relating to the registration, and other dealings of different forms of business associations to be exclusively done on internet platforms by members of the public in all parts of the Republic of Kenya.
m) A declaration that the Respondents, particularly the 32nd Respondent threatened and contravened Articles 48, and 50(1) of the Constitution by limiting and restricting the filing of pleadings and Court attendance by members of the public in a number of Courts, to be predominantly done on internet platforms.
n) A declaration that the Respondents, particularly the 1st to 31st Respondents have threatened and contravened Article 129, of the Constitution by offering a number of their services to members of the public in all parts of the Republic of Kenya exclusively on internet platforms and failing to consider the plight and realities of members of the public who are unable to access their services on the internet on account of either being unfamiliar with ICT skills, illiterate, semi-illiterate, marginalized, and/or poor.
o) A declaration that the Respondents, particularly the 20th to 30th Respondents have threatened and contravened Articles 174, and 176(2) of the Constitution by centralizing provision of some of its key services to members of the public in all parts of their regions predominantly on internet platforms.
p) A declaration that the Respondents, particularly the 18th Respondent have threatened and contravened Article 249(1), of the Constitution by offering a number of their services to members of the public in all parts of the Republic of Kenya exclusively on internet platforms and failing to consider the plight and realities of members of the public who are unable to access their services on the internet on account of either being unfamiliar with ICT skills, illiterate, semi-illiterate, marginalized, and/or poor.
q) This being a matter of public interest there be no orders as to costs.
r) Any other order(s) as this Court shall deem just.
Petitioners’ Case
6. On 10th June 2008, Kenya’s Vision 2030 was launched by the late President Mwai Kibaki with the goal of transforming Kenya into a rapidly industrialized middle-income nation by 2030. To commence this journey, the Vision Delivery Board was appointed by the President on 13th February 2009.
7. With the aim of transforming connectivity and transmission in the Country, the East African Marine System (TEAMS) fibre optic cable arrived in Mombasa in 2009. In the same year, SEACAOM, a privately funded fibre optic project, also arrived in Mombasa. Fundamentally, this set the stage for internet connectivity and communications in the Kenya. The government has over the years since then, made and implemented public policy decisions, laws, and programs to promote the use of ICT in the country.
8. The Petitioners aver that the Respondents have developed online systems for delivery of their services to the public in all parts of the Kenya, predominantly over internet platforms. In fact, it is stated that some of the government services are now exclusively only offered online.
9. Despite the great strides in this area, the Respondents are accused of failing to provide the public with meaningful access to the internet to enable it benefit from these services.
10. The Petitioners contend that the reality is that most of the Kenyan population lack the necessary ICT skills, lack infrastructure to access the internet, including laptops, desktop computers, phones and tablets. Additionally, many have no access, or have limited access and cannot afford internet services.
11. For context, the 1st Petitioner illustrates this through the range of services offered by the 1st Respondent which include: lodging applications for registration of marriages, licensing of Ministers of Faith, Application for Certificate of No Impediment to Marriage, Licensing of Ministers of Faith to be appointed as marriage officers, application for a Certified Copy of marriage certificates and application for issuance of marriage books to the marriage officers for purposes of solemnization solely on its online web portal: https://oag.ecitizen.go.ke/dashboard.
12. Similarly, the 2nd Respondent offers services on access to scholarship information, form one student’s selection, ministry training projections and information of technical and vocational education and training management information system on its online platform: http://www.education.go.ke. Comparable illustrations are further outlined in the Supporting Affidavit with reference to the other Respondents and the services they exclusively offer on their online platforms.
13. It is further deponed that according to the Kenya National Bureau of Statistic, 2019 Kenya Population and Housing Census Report, only 11.3% of the rural population have access to the internet compared to the 39.8% in the urban areas. Further, in the rural areas only 4.4% of the people have access to a desktop computer, laptop and tablet.
14. In a further Report dubbed ‘A review of the status of e-government implementation in Kenya’, it was established that the technological era has resulted in digital exclusion of some vulnerable groups such as the physically challenged, those living in rural areas, the aged and illiterate. Equally, it was noted that most Huduma Centres are found in the urban areas.
15. It was thus recommended therein that the government should empower these groups so that they can participate in online activities they offer by deploying more resources to ensure that citizens get access to the services.
16. The 2nd Petitioner in his own lived experience, narrates that some intruders sought to evict him from his parcel of land Nairobi/Block 105/13683.This caused him to seek the 1st Petitioner’s assistance. He depones that the 1st Petitioner assisted him prepare the letter dated 2nd November 2021 to issue to the Lands Registrar.
17. He depones that when he arrived at the office, he was directed to make an application online to which he informed them that he did not possess any ICT skills to be able to do so. In addition, he informed them that he does not have an email address and also does not have resources to make the online application.
18. He avers that the land office informed him that they would do the application for him if he had Ksh.5000, which he did not. His continuous visits to the land office are said to have been futile. In the end, he states that he was advised to go to a cyber café to make the application. He was charged Ksh.3000 by the cyber café to do the application.
19. He informs that thereafter he was issued with the search on 20th May 2022 although the Certificate had been generated on 3rd December 2021. He asserts that these are some of the challenges Kenyans are facing trying to access government services exclusively offered online.
20. The Petitioners in light of these, fault the Respondents for failing to implement initiatives and programs aimed at ensuring that members of the public seeking services, especially those who may not have access to the necessary infrastructure or are unfamiliar with ICT skills such as the 2nd Petitioner, have alternative means to access their services apart from accessing their services on their online web portals and websites. It is stated that the 2nd Petitioner like many Kenyans, has to pay for these services for instance through a cybercafé so as to access these services.
21. According to the Petitioners, the Respondents have failed to carry out sufficient e-literacy and e-enterprise skills basic training for members of the public who have no ICT skills. Likewise, that they have failed to install data centers countrywide to equip members of the public to access their services offered on internet platforms prior to them offering their services exclusively there. Moreover, it is alleged that the Respondents have failed to implement initiatives and programs aimed at ensuring members of the public have alternative means to access the services of the Respondents apart from accessing the services on their online systems.
22. In like manner, the Petitioners assert that the Respondents have also failed to implement initiatives and programs that will enable members of the public who have challenges in accessing services, still access the services. It is stated that the Respondents have failed to accord meaningful participation and training to members of the public who are unable to access government services on the internet on account of lacking ICT skills, being illiterate, marginalized, poor, prior to offering their services exclusively online.
23. Additionally, it is stressed that the Respondents’ assertions that they have made an attempt to offer resources to ensure that citizens get access to these services so as to access online services, is false and misleading. Furthermore, that no demonstration is made by the Respondents to ascertain that they have taken these necessary steps.
24. Consequently, the Petitioners postulate that by offering services over the internet without alternatives and failing to consider the plight and realities of the members of the public who are unable to access these services on the internet, the Respondents have threatened and contravened Articles 6(3), 10, 26(1), 27, 28, 33(1)(a), 35(1), 36(1), 46(1), 48, 50, 129, 174, 176(2) and 249(1) of the Constitution.
25. It is underscored that the Respondent have a duty to take measures to ensure that the members of the public have relevant education and training; have opportunities to associate, be represented and participate in political, social, economic and other spheres of life; access employment; and are protected from exploitation as they access services offered by the Respondents on their online web portals or websites.
Respondents’ Case
26. The 1st, 3rd, 4th, 5th, 6th, 7th, 9th, 12th, 14th, 16th, 19th, 20th, 21st 22nd ,23rd, 24th, 25th, 29th, 30th, 31st and 32nd Respondents’ responses and submissions are not in the Court file or Court Online Platform (CTS).
2nd Respondent’s Case
27. The 2nd Respondent, through Principal Secretary, Dr. Belio Kipsang filed a Replying Affidavit sworn on 24th April 2023 in response to the Petition.
28. He stated that the Ministry of Education is responsible for implementing the government’s obligation of ensuring every person’s right to education under Article 43(1)(f) of the Constitution and children’s right to free and compulsory basic education under Article 53(1)(b) of the Constitution, is accessible to all.
29. He depones that Sessional Paper No.1 of 2019, a policy framework for reforming education and training for sustainable development in Kenya, underscores the government’s commitment through their Ministry to provide access, equity, quality and relevant education and training to its citizens including the marginalized.
30. He depones that in this regard the Ministry of Education has decentralized its services to the County, sub-county and school levels by ensuring that its services are accessible both online and physically to all citizens.
31. On this premise, he avers that the Petition is baseless, misconceived and devoid of any merit, as such so should be dismissed.
10th Respondent’s Case
32. This Respondent through its Chief Executive Officer, Stanley Kamanguya filed its Replying Affidavit sworn on 20th April 2023.
33. He deponed that the 10th Respondent a State Corporation under the Ministry of Information Communication and Digital Economy was established in August 2013 with the task of rationalizing and streamlining the management of all government ICT so as to enable efficient and effective access in the delivery of public service.
34. He depones that at the establishment of the 10th Respondent, there was 4300KM of fibre across the country covering all provincial headquarters and six key border towns. After its establishment, the 10th Respondent between 2014 and 2017 laid an additional 2100KM of fibre connecting all the 47-county headquarters. In addition, in 2017, an additional 2500KM of fibre was laid covering 290 sub county headquarters. Furthermore, he depones that an additional 3436 KM of fibre have been laid under the Government Common Core Network, Universal Health Care Connectivity and the County Connectivity Project.
35. It is further deponed that the 10th Respondent between 2017 and 2021 distributed 1.2 million devices to 22,891 primary schools with the goal of equipping the students with ICT skills. At the moment, he states that the 10th Respondent is undertaking a project in partnership with UNICEF to connect schools with internet and has so far connected 19 schools.
36. As well, he informs that markets and Technical and Vocational Education and Training (TVETs) have been connected with internet. Equally, he depones that the 10th Respondent in collaboration with other government agencies is currently undertaking a project dubbed "Jitume" aimed at connecting TVETs institutes to the internet and providing training on digital skills and online jobs.
37. He further states that the 10th Respondent has undertaken various activities to build capacity and literacy of citizens in ICT. In this regard, he avers that it has launched a portal for registration of citizens aimed at training 20 million citizens on ICT at: https://smartacademy. icta.go.ke/basic-skills-registration.
38. He informs that the 10th Respondent continues to lay fibre and has commenced the process of laying 100,000 kilometers of fibre in the next 5 years. Likewise, it intends to roll out 25,000 hot spots throughout the Country to boost the public’s access to internet and to set up 14,500 digital labs to increase connectivity. He notes that the 10th Respondent is providing connectivity to Telecommunications Service providers through the National Fibre Backbone to provide connectivity to homes and other areas so as to reduce the cost of connectivity.
39. He in view of this contends that the Petitioners filed this Petition without giving regard to the efforts that have been undertaken in the nation’s ICT area and existing success stories. For this reason, he argues that the Petition is premature and fails to disclose any breach against the 10th Respondent.
11th Respondent’s Case
40. This Respondent through its Deputy Executive Director, George Nyakweba filed its Replying Affidavit sworn on 12th June 2023.
41. He depones that the 11th Respondent offers its services both online through its email: info@copyright.go.ke and physically at its offices located at NHIF Building in Upper hill, Nairobi. He notes that the 11th Respondent also engages people through its X platform, Facebook, Instagram and YouTube.
42. He informs that on 14th January 2020, the then President, Uhuru Kenyatta directed the Ministry of ICT to work with all industry stakeholders so as to stream and solve the legacy challenges in the music industry, through the use of ICT, by creating a National Rights Registry and royalties'' management system for Collective Management Organisations.
43. He avers that in order to operationalize the amendments made to the Copyright Act in 2019 and 2022, the 11th Respondent created the National Rights Registry (NRR) portal, which is the central repository for collating details pertaining to ownership of various copyright works. It is used by copyright holders to allow them register, view and download their copyright certificates. This portal is also available to the public on: nrr.copyright.go.ke.
44. He states that in terms of enforcement of copyright and related rights, the 11th Respondent has a legal and compliance department which the public can seek free legal advice from by making a physical visit to their offices or making an appointment online through the website at copyright.go.ke. Additionally, he depones that members of the public who are desire to report a case on infringement of copyright can either visit their offices to lodge their complaint or write a formal complaint addressed to the Executive Director.
45. Also, he states that the 11th Respondent is mandated to devise and implement training programmes on copyright and related rights. He notes that this is done by reaching out to creatives from different parts of the country and organizing training sessions where they are enlightened about copyright and related rights.
46. In view of the foregoing, he argues that the Petitioners have failed to acknowledge these ICT efforts as adopted by the 11th Respondent. He argues thus that the Petition does not disclose with precision any breach on the 11th Respondent’s part.
13th Respondent’s Case
47. On 15th September 2022, the 13th Respondent swore its Replying Affidavit through its officer, Diana Akivaga.
48. She asserts that the Petitioners case against the 13th Respondent lacks clarity and precision in setting out the violation against it. In that the Petitioners have failed to show how this Respondent failed to perform its constitutional duties.
49. She informs that the 13th Respondent has undertaken several steps to ensure it meets its obligation such as: setting up 38 service centers and is presently in 52 Huduma Centers; in addition during the 2021 filing season, the contact centre and huduma centres extended their opening hours from 2nd June to 30th June 2022 which was communicated through all channels including newspapers and radio; moreover this Respondent has communication and education initiatives executed across the country to enhance its reach to taxpayers in addition to providing customer support and education such as offsite.support (Jaza Mapema); likewise this Respondent has ensured continuous direct communication via letters and emails to employers, taxpayers and tax agents; and also it introduced various digital communications such as the KRA website and google ads.
50. In addition to the above, she depones that the 13th Respondent has introduced building sweeps which entails visiting buildings with large number of occupants in towns such as KICC, to sensitize them on returns filing and offer onsite filling support. Likewise, it conducts street storms aimed at creating awareness around income tax filing and offering support to persons wishing to file their returns. In addition, it has a Mobile Tax Unit which is used across the country, to offer filing support outreach to tax payers.
51. On this premise, she contends that the issues canvassed against the 13th Respondent in this Petition are baseless and unfounded as it is evident that it has put in place mechanisms to provided equal access and opportunities to all persons.
52. That said, she avers that the realization of the right to access internet which is a socio-economic right is subject to the availability of resources at the State’s disposal. It is noted that no reasonable cause has been demonstrated neither the existence of the purported circumstances to warrant issuance of the sought relief and moreover which would be prejudicial to the 13th Respondent. As such, the Petition is deemed to be fatally defective and so should be struck out.
15th Respondent’s Case
53. The Acting Chief Executive Officer, Dr. Samson Kuhora for the 15th Respondent filed his Replying Affidavit sworn on 12th April 2023.
54. He depones that the 15th Respondent has 105 fully autonomous branches and satellite offices, in addition to being present in 47 Huduma Centers across the Country. He informs that each of this offer comprehensive customer service both in person and digitized services.
55. He depones that none of the 15th Respondent’s services are exclusively digitized. He states that all the services available digitally are also available in each of these offices and centres. Furthermore, he avers that this Respondent has a user-friendly website: http:/www.nhif.or.ke where members of the public can access information about the Fund. This service is also available through a mobile app which is available for free.
56. Moreover, he informs that this Respondent has developed a USSD code *155# which allows for self-registration and access to various services even without internet access. Similarly, there is a toll-free line 0800720601 which can also be utilized in addition to its social media platforms.
57. Considering this, he asserts that the 15th Respondent has made great efforts to increase its reach to the public and ensure optimum service delivery to Kenyans both digitally and in-person. He argues as such that the instant Petition was lodged without regard to all these efforts. The Petition is thus deemed premature and as failing to disclose any breach.
17th Respondent’s Case
58. The Director and General and Deputy Director in charge of Licensing, George Njao filed his Replying Affidavit sworn on 10th May 2023.
59. He avers that the 17th Respondent’s services are accessible through a hybrid model, both online and through physical services dependent on the type of service required.
60. He informs however that majority of their services are online based such as, vehicle registration though once done a registered owner collects the same physically. Similarly, motor vehicle inspection is done online but the process conducted physically at their inspection centres. Equally, the driving test and licenses booking are done online but examination conducted physically. He makes known that prior to the digital migration so as to bring its services closer to the people, they had long queues just to access these services.
61. He depones that the 17th respondent has 17 regional offices across the Country where the services can be accessed easily. They also have offices in all the Huduma Centers in Kenya.
62. To this end, he argues that the Petitioners have not demonstrated with preciseness the specific provisions of the Constitution purported to have been violated and demonstrated how the 17th Respondent violated them.
18th Respondent’s Case
63. The 18th Respondent through its Chief Executive Officer, Simon K. Rotich filed a Replying Affidavit sworn on 18th July 2022. On an introductory note, he states that the instant Petition is misinformed and contains misrepresentation of facts. For that reason, he contends that the Petitioners ought to have sought the requisite information before filing this suit.
64. He depones that the 18th Respondent whose mandate revolves around recruitment, appointments and hearing of appeals, advertises all job vacancies in newspapers and on its website in accordance with the provisions of Section 37 of the Public Service Commission Act. He informs that the Act also requires that these advertisements be done on radio. He informs however due to its budgetary allocation it has not been able to achieve radio advertising. That said, job applicants have the option of delivering their application physically to their offices, by post or by filing an online application form.
65. He informs that up until 2020, the 18th Respondent always conducted physical interviews unless where one is out of the country. Thereafter, the Respondent commenced virtual interviews either online, through telephone calls and where necessary physical interviews. He makes known that the virtual interviews have been well received particularly by candidates from far-flung areas. He affirms that the Commission nonetheless is always willing, able and ready to conduct physical interviews for any person who is not able to participate in a virtual interview.
66. In addition to this, he depones that this Respondent commenced the process of establishing remote ICT Centres that will enable applicants and candidates with no access to internet and other infrastructure to use the Commission''s ICT Centres to apply for advertised jobs and also to attend the virtual interviews. He informs that these will be operationalized soon.
67. He states that with regard to county appeals, the Public Service Commission (County Appeals Procedures) Regulations, 2022 provides for filing of appeals either physically or by post or email. He states that where this Respondent finds it necessary to hear an appeal orally, the same is heard physically at their offices in Nairobi. He informs in fact that no Appeal has ever been heard virtually.
68. On this basis, he asserts that the allegations made against the 18th Respondent are baseless and unfounded as the Commission has put in place mechanisms to provide equal access and equal opportunity to all persons. For this reason, he argues that the 18th Respondent has been wrongly sued in this matter and Petition lacks merit.
26th Respondent’s Affidavit
69. The 26th Respondent through its Director Legal Services, Julius Waliaula filed a Replying Affida
[...truncated]