- Kay has asked the judge to treat the cases as confidential and lock out the media
President Uhuru Kenyatta’s lawyer has filed “confidential” lawsuits against Safaricom and Airtel, the two leading mobile telephone service providers in the country.
Mr Steven Kay, a Queens Counsel who is part of Mr Kenyatta’s defence team at the International Criminal Court (ICC), is seeking access to unspecified information from the two mobile phone companies.
The first case against Safaricom was filed at the High Court on Friday before Mr Justice David Majanja and the second against Airtel was filed yesterday before Mr Justice Isaac Lenaola.
President Kenyatta and his deputy, Mr William Ruto, are set to stand trial at the ICC later this year. They face crimes against humanity charges stemming from the 2007/8 post-election violence. Also on trial is former radio journalist Joshua arap Sang.
Mr Kenyatta is not a party to the lawsuits filed in Nairobi and Mr Kay is represented in the two cases by the law firm of Ogeto, Otachi & Company Advocates.
The substantive applications will come up in the High Court this morning, but meanwhile it has been impossible to find out what Mr Kay wants from Safaricom and Airtel because of the veil of secrecy placed around the case.
The original applications, even before the main suits were filed, are for the cases to be heard in secret.
In the application, Mr Kay sought the following orders from the court: “That the court do make orders for the confidential filing and hearing of the intended constitutional petition to be filed by the petitioner; that the court makes orders for the confidential filing of any application in relation to the said petition; that access to the intended petition and any application to be restricted to the parties to the petition.”
The applications, very rare in the history of the Kenyan courts, were filed and heard behind closed doors. The orders opened the way for the British lawyer’s Kenyan representatives to file the petition against Safaricom.
In the petition, Mr Kay seeks “protection of the petitioner’s rights under the Constitution; orders for information; and such other orders as the court may deem fit.”
Yesterday morning, Mr Kay’s lawyers filed a petition against Airtel, seeking a declaration relating to “the right of a fair trial as provided for under the Constitution.”
He also seeks “an order for release of information, liberty to apply and such other orders.”
The Nation learnt that lawyers for both Safaricom and Airtel agreed to the application that the cases be heard in secret.
The Nation’s efforts to access the case files on Monday were unsuccessful. Usually, files of live cases are kept in the court’s registry, where reporters are usually allowed by registry officials and court clerks to read them.
When our reporter visited the court’s Judicial Review Division registry yesterday, he learnt of Mr Kay’s suits from the main register of suits. This story is based on details about the cases as entered in that register by a registry clerk.
On further enquiry on whether the files could be made available to our reporter, the registry clerks said that a specific directive had been given that the files containing Mr Kay’s petitions and related applications should not be accessed by anybody else and that the files had been locked up in the office of a Deputy Registrar in charge of the division.
On Friday when the application for confidentiality was filed, Nation reporters were barred from entering the registry and were therefore unable to see the suits that had been filed that day.