Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR
In his view, NIIMS could also help in the elimination of trafficking in children and child labour as well as help
enforce laws against child marriage.
465. It was Mr. Muchemi’s opinion that commercial tools may run on open source software primarily because of
the commercial conveniences associated with open source software. However, government tools invariably run on
closed source software owing to the nature of sensitivity of the information maintained and processed by such
tools. Furthermore, systems that run on closed source software have their own security testing mechanisms. That
regardless of the adequacy or lack of legislative and policy frameworks, sensitive systems such as NIIMS are
architecturally designed to incorporate safeguards that guard the access of data even by authorized personnel to
ensure that though they may access the data, they do not do it without accountability and that they can only access
it when it is required. In any event, security of data in any digital system is not necessarily entirely dependent on
the existence of stringent legislative and regulatory frameworks.
466. Mr. Waikwa, Counsel for the 1st Petitioner cross-examined Mr. Muchemi on his appointments to Boards of
various organisations that have a connection with or are under the Ministry of ICT. Mr. Muchemi denied that he is
a public officer, and stated that he has consulted for government, the last consultation having been in the SWOT
analysis where he was seconded to UNICEF as the lead member for government. He clarified that his only
connection with NIIMS was the SWOT report, which was prepared in December 2017 before the establishment of
NIIMS, and that he had not conducted any study on NIIMS thereafter. He also testified that he is not involved in
the implementation of NIIMS, nor in the setting up of the NIIMS architecture.
467. Mr. Muchemi stood by the averments in his affidavit on NIIMS being a centralized system, on the birth
register being a unique identifier, and on probabilistic and deterministic system and deduplication and multi-modal
systems, which he stated were reached from his SWOT analysis and his experience.
468. On re-examination by Dr. Nyaundi, and Mr. Njoroge Regeru, Mr. Muchemi clarified that he has professional
involvement with corporate bodies and private sector bodies that work in the area of ICT, and that this did not
influenced his SWOT analysis. Further, that the focus of the SWOT analysis was to harmonise fragmented
citizens’ identity information and that it did allude to a centralised database as a single source of truth on identity,
which is NIIMS.
469. Mr. Loyford Muriithi also gave expert evidence on behalf of the 5th Respondent. He deposed that he is an
Assistant Director in the Ministry of Information, Communications and Technology and has been involved in all
the processes of development and establishment of the NIIMS project. It was his testimony that in designing the
operational and functional architecture of NIIMS, the government carefully selected various desirable attributes
adopted by various jurisdictions they benchmarked in and customized them to suit the unique circumstances of
Kenya. With particular reference to Estonia, he averred that the government consciously resorted to model its
identity system from the Estonian one as both Kenya and Estonia keep a digital centralized master population
register of all their respective citizens and registered foreign nationals and they have no monopoly over the
individual functional data repositories that belong to the institutions linked to the said national master population
registers.
470. As such, every institution linked to the national master population register can use the identity data kept in the
national master population registers for purposes of authenticating the identity of individuals. However, the
national master population registers can neither access nor use the functional data stored in the individual
repositories belonging to the institutions linked to the national master population registers in question.
471. It was his deposition further that the departure of NIIMS from the Estonian system is marked by the fact that
Estonia utilizes identity cards which are valid for both physical and digital identification and is based on an
electronic chip and two pin codes supplied with the card. By using a smart card reader and a computer connected to
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