The Court of Appeal has mandated the government to disclose all documents pertaining to the Nairobi-Mombasa Standard Gauge Railway (SGR), declaring that keeping this information from taxpayers who financed the USD 4.5 billion, roughly Ksh583 billion, railway violates constitutional principles.
The judgment, issued on May 15, 2026, by a three-judge panel rejected a 2022 civil appeal presented by Attorney General Dorcas Oduor against two civil rights activists.
“The Court emphasized that accessing state-held information constitutes a constitutional and democratic right, limited only by narrowly defined and constitutionally valid exceptions, with the responsibility to justify any exemption falling directly on the state or public authority concealing the information,” the ruling stated in part.
The activists had filed a petition with the High Court in 2021 under Constitutional Petition No. E032 of 2021, seeking complete transparency regarding Kenya’s railway financing, procurement agreements, and bilateral arrangements with China.
They contended that while Kenyan taxpayers guaranteed the funding and loans, vital project documents such as contracts, feasibility studies, and environmental assessments remained entirely inaccessible to the public.
Initially, the petitioners formally requested the documents in December 2019 and renewed their request in May 2021, but both Kenya Railways Corporation and the Office of the Attorney General denied access, citing “official secrecy”.
The Court of Appeal noted that both organizations based their refusal on confidentiality clauses in the agreements, national security considerations, foreign relations sensitivities, and exemptions under the Official Secrets Act and Section 6 of the Access to Information Act, 2016.
“After formal requests in December 2019 and May 2021, Kenya Railways Corporation and the Office of the Attorney General refused disclosure, invoking confidentiality provisions, national security concerns, foreign relations matters, and exemptions under Sections 3(6) and (7) of the Official Secrets Act alongside Section 6 of the Access to Information Act, 2016,” the ruling stated in part.
Before the appellate court, AG Oduor maintained the same position, asserting that disclosure would jeopardize Kenya’s national security, strain diplomatic relations with China, adversely affect commercial third parties, and expose the government to significant legal and financial consequences.
The respondents, with support from Katiba Institute as the third party, countered that simply invoking exemptions without demonstrating tangible harm was inadequate to prevent citizens from accessing information about a project of substantial national significance.
The Commission on Administrative Justice (CAJ), acting as the fourth respondent, made a persuasive argument before the court that the Official Secrets Act should not be interpreted “separately from Article 35 of the Constitution and the Access to Information Act,” which establish the fundamental right of citizens to access information held by governmental or private entities.
CAJ further characterized Kenya’s Access to Information Act as extraordinary legislation, describing it as a transformative moment representing “a constitutional shift from a culture of secrecy to openness, transparency, and accountability.”
The appellate court concurred, decisively rejecting what it termed “blanket denials” from the state and emphasizing that the government must present detailed, substantial evidence of actual harm instead of vague, unsubstantiated statements concerning national security.
The court also dismissed claims that confidentiality provisions could protect the contracts from constitutional review, particularly since Kenya Railways and the AG presented conflicting information about document custody, with neither stance backed by credible evidence.
The court also reaffirmed the principle of motive-blindness under the Access to Information Act, ruling that “Kenyans are not required to justify their requests for government information”, as the state serves as its constitutional custodian, not as a private owner.
The appeal was rejected in its entirety, maintaining the High Court orders that compel the government to comply, with each party responsible for covering its own costs due to the case’s substantial public interest significance.