Public Policy / Public Interest

Question 1

meaning of PI

Answer 1

matter affecting the welfare of the state.

Meaning of public interest
- There is no exhaustive definition of public policy or exhaustive list of circumstances when the adduction of evidence will be precluded on grounds of public policy.
- Generally, a document will be precluded from disclosure on ground of public interest if-
 It belongs to a ‘class’ of documents which by their nature ought to be withheld from production; e.g. classified documents
 Its ‘contents’ are of such a nature that the documents might to be withheld from production.

Question 2

1 case

Answer 2

Christ for all nations V apollo insurance (2002):
Ringera J opined that ‘public policy is a most broad concept incapable of precise definition’, and he likened it to ‘an unruly horse’ that ‘once one got astride of it you never know where it will carry you’. So, the test that Ringera prescribes is,
1. The Court was of the view that an award that is inconsistent with the public policy of Kenya is one that is inconsistent with the Constitution or other laws of Kenya,
2. inimical to the national interests of Kenya (including interests of national defence, security, good diplomatic relations with friendly nations and the economic prosperity of Kenya), and
3. contrary to justice and morality (including corruption, fraud or an award founded on a contract that is contrary to public morals).

Question 3

Requirements to be complied with when the state claims a public interest. (3 OF THEM)

Answer 3

s. 131 EA: outlines requirements to be complied with when the state claims public interest.
1. statement on oath by CS that he has examined the contents of a document forming part of any unpublished official records, through an affidavit in civil matters. HE IS SUBJECT TO CROSS-EXAMINATION
2. statement of opinion that production would be prejudicial to the public service; and
3. statement of reason, either based on the content thereof or fact that it belongs to a class which on the grounds of public policy should be withheld from production.

s.132 EA: privilege of official communication for public interest

Question 4

the constitution and ATI act

Answer 4

s.6 of the access to information act limits a.35 on access to information by authority in article 24.

Question 5

scope of exclusion (7 OF THEM)

Answer 5

1. National security and defense
2. Good diplomatic relation and international comity
    Diplomatic dispatches
3. Economic prosperity/interests of the country
4. Crime detection
    Public interest to protect the identity of informers and whistle blowers, not only for their safety but also to ensure that the supply of information about criminal activities does not dry up.
    Court decides what should be withheld from disclosure not prosecution or police.
5. Judicial disclosure
   • Judges cannot be compiled to give evidence as to their conduct as judges or as to anything which came to his knowledge in court but can be examined on other matters which occurred in his presence while acting judge- s.129 EA.
   • Judicial officers cannot be asked questions about the reasons for their judgements/awards.
   • Where a litigant wishes to prove what was said in earlier litigation, the court record and a properly proved transcript there available, is usually the best means of proof.
6. Proper functioning of the public service
7. Confidential relationships: certain confidences ought to be respected e.g., the relationship between a doctor and a patient, a journalist and source and a priest and penitent.
   • A journalist should identify their sources whenever possible unless it is in the PI to use confidential course -s.4,7,8, Code of conduct for the practice of journalism.

Question 6

2 important cases

Answer 6

1. Dancan & anor v Cammell laird & co. ltd (1942): 
The test (whether the document should be withheld) may be found to be satisfied either- 
-	By having regard to the contents of the particular documents
-	 By the fact that the document belongs to a class which on grounds of public interest must be withheld from production. 

2. CONWAY V RIMMER: (rejected the Duncan v camel view)
   The house of lords held that the documents must be produced for inspection and if it was found that disclosure would not be prejudicial to public interest or that any possibility of such prejudice was insufficient to justify their being withheld, disclosure should be ordered.

Question 7

2 conflicting interests in relation to PI

Answer 7

1. right to adduce evidence to support your case

vs

2. There is a public interest that sometimes impels the withholding of evidence, especially where its disclosure would harm a competing public interest that is considered more important than the administration of justice between the litigants who are before the court.