Accessing public documents in Kenya is your right

Maintenance of public records is a State duty under various laws and access to these records by a citizen an unfettered right.

Government and its departments and other institutions and quasi-government undertakings are obligated to maintain true records of public documents and to avail extracts to every Kenyan when he so requests without giving any reason as to why the document is required.

Let us translate this into day-to-day business life. Anyone can ask by way of a search and after paying a nominal fee to find the owner of any land in the Republic and use the information for whatever reason. If need be the extract can be produced in court as evidence.

Similarly, one can go to the police station and ask for an entry in the OB, or obtain an accident abstract or go to the Registrar of Motor Vehicles and search any registration number or go to the Registrar of Companies or Political Parties or Societies or go to the Survey Department and procure any plan and ask for documents, which fall in the definition of public documents.

A public document is defined as a document of public interest issued or published by a political body or otherwise connected with public business and the Evidence Act stipulates what kind of document is a public document and what is a private document.

Since Independence there has been a startling downward trend and failure by the governmental organs in the legal maintenance and upkeep of public documents. Public records are being defaced, forged, distorted and interfered with, resulting in the legal status of many citizens being altered.

One of the most profound reasons for Kenya being branded as bordering on failed state has been the failure in most departments to keep true and accurate records in the running of State machinery.

Some questions will perhaps highlight a citizen’s dilemma:

How can one surveyed piece of land have two, three, four or more “Deed Plans” and title documents all purporting to have emanated from one government department?

And how can there be one registration number with different registration books or logbooks and different vehicles? How can police add a name of a stranger to the accident in the Accident Abstract and facilitate falsified claims?

Excluding criminally obtained and forged documents, there regrettably is a pathetic inefficiency prevailing all over whereby sheer negligence adds to the plight of the citizens. Under the Business Names Act, the Registrar is not supposed to register similar or misleading names but this is now a norm.

I recently came across a business name registered as B....Enterprises which exact name has four files and four different registration certificates bearing different numbers, having different partners (Registrar of Business Names: See your BN files numbers 179070, 212317, 180588 and 205814 and do something about it!)

Now I, as any other citizen, am allowed to pay a small fee and search these public documents at the Registrar of Business Names but how is a citizen to proceed when the Registrar of Business Names is downright negligent to register four exact names and all this ostensibly when the records are computerised?

Complain and complain

Of course there must be recourse for a public spirited individual to file a suit against the Attorney General to deregister the three names but who has the energy, time and money to engage in these exercises?

Authenticity of documents from ID cards, passports, Birth Certificates and Death Certificates, Logbooks, Title Documents, Court Orders and Judgements all are being questioned and being verified repeatedly, thereby slowing down the process of running any office.

Another aspect of public documentation is the unnecessary red tape introduced to procure or have access to public documents. Arbitrary rules and hurdles are evident all over, for example at the Lands office. If I have the Land Reference Number and I desire to search the file I should be allowed to do so. But no, someone at the Lands Office insists that I should produce a copy of the title to be searched.

How and where do I get a copy when I am verifying the very existence of the land, say, of the person who has sued me?

The biggest culprit in the maintenance of records must be the Companies Registry. By law all the firms are supposed to file annual returns by which method a citizen, upon search, can determine the present state of the company. The returns though filed do not make it to the relevant file for years and years.

For lawyers and company secretaries this poses a nightmare and the Registrar of Companies must be aware of all this.

A time perhaps is ripe when the citizens must take their rights seriously and at the risk of being branded difficult, fastidious or unco-operative, demand access to the documents without any limitation.

There is now an underused remedy. Next time you are not given access or true and authentic records, complain, write a letter or send an email, and if no response is received go to the Ombudsman and complain, and complain, and complain and help this country become efficient. There is a corresponding duty vested in the citizens to make our country efficient.

The writer is a lawyer.

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