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ELRCPartially AllowedApplication dated 28th February, 2014 (in a suit filed 24th May 2013)· [2014] KEELRC 1228 (KLR)

Mwalimu Kithome Musau v Kenya Water Institute & another [2014] KEELRC 1228 (KLR)

Employment and Labour Relations Court
25 July 2014
DMD.K. Njagi Marete
1,618 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was a notice of motion dated 28th February 2014 by the claimant, Engineer Mwalimu Kithome Musau, in a pending employment suit against his former employer, a state agency. The claimant sought an order compelling the 1st Respondent to furnish the instrument of termination of his employment, and, in default, an order for payment and continuation of half salary based on an interdiction letter dated 8th April 2013, pending the hearing of the main suit. The claimant argued that despite the alleged termination on or about 13th May 2013, he had never received formal communication of it despite repeated requests, and that the refusal breached his rights of access to information under Article 35 and fair administrative action under Article 47 of the Constitution, and caused him severe hardship as he had no other livelihood. The respondents opposed, contending that the instruments of termination were a matter for interlocutories and document inspection at trial under the Civil Procedure Act and Rules, that half salary had been paid up to July 2013, and that the application was an abuse of process intended to pre-empt the main suit. The court held that the claimant had a case, that access to information held by the State is a non-negotiable constitutional right, and that Article 35 requires no supporting legislation to be enforceable. It ordered the 1st Respondent to furnish the instrument of termination within 30 days, construed the instrument as the letter of termination, and awarded costs of the application to the claimant against the 1st Respondent. The alternative half-salary prayer was not granted in the final orders.

Key legal issues

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01

Whether Article 35 of the Constitution confers a directly enforceable right of access to information on the claimant against a State agency

Holding

Yes. The court held that Article 35 stands on its own, requires no supporting legislation, and recognized and awarded the claimant's right of access to information held by the 1st Respondent, a state agency.

Reasoning

The court observed that Article 35 stands distinctly on the subject and contains no provision requiring supportive legislation for its implementation, and that Parliament had not enacted any. The claimant needed the instrument of termination to know the terms on which his employment was terminated and to direct his litigation. Since parties are generally entitled to access information held by the State necessary for the protection of any right, the court recognized the claimant's right and awarded it.

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02

Whether the claimant was entitled to the instrument of termination of employment

Holding

Yes. The court ordered the 1st Respondent to furnish the instrument of termination within 30 days, construing the instrument as the letter of termination.

Reasoning

The claimant's half salary and other employment benefits had been denied on grounds of termination of employment, yet the instrument of termination had not been provided despite repeated requests through counsel and inter partes correspondence. Without it the claimant could not know on what terms his employment was terminated or amend his Statement of Claim accordingly. The court found he had a case against the respondents and ordered production within 30 days.

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Legal principles established

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  • Access to information held by the State or other persons, necessary for the exercise or protection of any right or fundamental freedom, is a constitutional right under the Bill of Rights that is not negotiable and is directly enforceable without supporting legislation

Court orders

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  1. 1.The 1st Respondent be and is hereby ordered to furnish the claimant/applicant with instruments of termination of his employment within 30 days of the orders of court
  2. 2.The instruments of termination for the court's purposes shall be construed to mean letter of termination
  3. 3.The costs of the application shall be borne by the 1st Respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 35
  • Constitution of Kenya, 2010Article 47
  • Civil Procedure Act and Rules
Jurisdiction invoked
Article 35 of the Constitution of Kenya, 2010 (access to information) in an employment and labour relations dispute

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mwalimu Kithome Musau v Kenya Water Institute & another [2014] KEELRC 1228 (KLR)", Case Analysis (2014). Application dated 28th February, 2014 (in a suit filed 24th May 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1228/eng@2014-07-25

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