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ELRCDismissedNot stated in the judgment as provided· [2014] KEELRC 1144 (KLR)

Farah Abdinor Ahmed v National Land Commission & 2 others [2014] KEELRC 1144 (KLR)

Industrial Court (Labour Relations Court)
18 June 2014
MBMbaru
4,624 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~18 min to read original · ~4 min brief

The bottom line

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Kenya's Industrial Court dismissed a bid to access recruitment records, ruling you must first ask a public body for information directly before going to court.

What this practically means

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Executive summary

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The petitioner moved the Industrial Court by Notice of Motion dated 7th May 2014 under Rule 23 of the Constitution (Supervisory Jurisdiction and Protection of Fundamental Rights) Practice Rules and Articles 22, 23, 35 and 163 of the Constitution, seeking a conservatory stay of the 1st respondent's appointment of the 2nd respondent as Secretary to the County Land Management Board and a mandatory injunction compelling the 1st respondent to furnish certified copies of applications and testimonials of shortlisted Wajir County candidates. The petitioner alleged the 2nd respondent lacked the required four years' senior management experience and that his appointment was procured through lobbying, contrary to Chapter Six and Article 232 of the Constitution. The respondents opposed, contending the court lacked jurisdiction, the recruitment was competitive and transparent, and that the petitioner never requested the information before coming to court. The court first confirmed its own jurisdiction under Article 162 and section 12 of the Industrial Court Act, holding the dispute over a public appointment fell within its remit. On the Article 35 claim, the court held that access to information requires a prior request and refusal; coercive orders lie only where a request has been made and denied. Finding no evidence of any request or refusal, the court dismissed the application as premature and speculative, with each party bearing their own costs.

Key legal issues

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01

Jurisdiction of the Industrial Court over the petition

Holding

The court has jurisdiction because the dispute relates to the appointment of the 2nd respondent and falls within Article 162 and section 12 of the Industrial Court Act

Reasoning

The Industrial Court is a superior court of record under Article 162 with exclusive jurisdiction over employment and labour relations disputes under section 12 of the Industrial Court Act. The petition concerns recruitment and appointment to a public office, and conservatory orders sought relate to that appointment, which falls within the Court's realm of jurisdiction.

p. 5
02

Entitlement to access to information under Article 35

Holding

The petitioner's application fails because he never requested the information from the respondents before filing suit

Reasoning

Article 35 creates a right to request information and a concomitant duty to provide it unless there are grounds for refusal. A party seeking enforcement must show a request was made and refused. The petitioner did not request the applications and testimonials before moving the court; the approach is speculative and premature, citing KSMH v Attorney General.

p. 7

Legal principles established

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  • Coercive orders under Article 35 lie only where a request for information was made to the state and denied
  • Jurisdiction is foundational; a court without jurisdiction must down tools
  • The fundamental condition to the right to access information under Article 35 is a prior request for the information

Court orders

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  1. 1.The application dated 7th May 2014 is declined and dismissed
  2. 2.Each party will bear their own costs

Authorities

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Legislation

  • Constitution of KenyaArticles 10, 22, 23, 24, 35, 41, 47, 162(2), 162(3), 163, 165(5), 232
  • Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual) High Court (Practice Rules)Rule 23
  • Industrial Court Actsection 12
  • Employment Actsections 73(2),(3),(4),(5) and 74(2)

Cases cited (9)

  • Nairobi law Monthly Company Limited versus Kenya Electricity Generating Company & Others
    [2013] eKLR
  • Dr. Anne Kinyua versus Nyayo Tea Zone Development Corporation & 3 others
    [2012] eKLR
  • Martin Nyaga Wambora versus the Speaker, County Assembly of Embu & 5 Others
    [2014] eKLR
  • National Association for financial inclusion of the informal Sector versus the minister for Finance & Another
  • Charles Omanga & 8 others versus Attorney General
    [2014] eKLR
  • The Owners of the Motor Vessel “Lillian S” v. Caltex Oil (Kenya) Ltd
    [1989 KLR 1
  • United States international University versus Attorney General and 2 others
    Petition 170 of 2012
  • Kenya Society for the mentally Handicapped (KSMH) versus the Attorney General and others
    Petition 155A of 2011
  • Ottawa Football Club versus Canada (Minister of Fitness and Amateur Sports)
    [1989] 2 FC 480
Jurisdiction invoked
Articles 22, 23, 35, 162 and 165 of the Constitution; section 12 of the Industrial Court Act, 2011

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Farah Abdinor Ahmed v National Land Commission & 2 others [2014] KEELRC 1144 (KLR)", Case Analysis (2014). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1144/eng@2014-06-18

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.