Paul Masinde Simidi v National Oil Corporation of Kenya Limited & another [2015] KEELRC 854 (KLR)
The bottom line
#Kenya's employment court ruled employers must hand over internal board minutes if an employee shows the documents are genuinely needed to prove their case.
What this practically means
#Executive summary
#Key legal issues
#Satisfaction of the Article 35(1)(b) criterion for access to information
The criterion was satisfied because the Respondents did not deny the existence of the minutes or the Petitioner's deponement on the proceedings thereat, and the documents were necessary for the fair determination of the petition.
The Court examined the petition, which complains of violation of fair labour rights under Article 41(1), and the Petitioner's replying affidavit deponing that his case was discussed at the Board and committee meetings. Since the Respondents did not deny the existence of the minutes nor the Petitioner's account of the proceedings, the Court concluded that the documents sought were necessary for the fair determination of the case and that the Article 35(1)(b) threshold was met.
Balancing the right of access to information against the employer's right to privacy
Both rights are not absolute and are subject to limitation under Article 24; on balance, the ends of justice are best served by production of the information sought.
The Court accepted that the employer/employee relationship places information in the employer's possession that is unavailable to the employee, and that the minutes contain other sensitive material relating to accounts, strategic plans and third parties. Nevertheless, both the Article 35 right and the Article 31 privacy right are non-absolute and subject to Article 24 limitation. Weighing the two, the Court held that justice favours production of the information sought.
Legal principles established
#- An applicant invoking Article 35(1) must state the right to be exercised or protected, the information required, and how that information would assist in exercising or protecting that right.
- In an employment dispute the Court must balance the employee's right of access to information under Article 35 against the employer's right to privacy under Article 31, both being rights subject to limitation under Article 24.
Court orders
#- 1.The Respondents shall, within seven (7) days from the date of the ruling, produce certified copies of the minutes of the Board of Directors meeting held on 15th December 2011, the Human Resources Committee meeting held on 14th May 2012, the Board Audit Committee meeting held on 25th March 2011 and the Board Audit Committee meeting held on 24th November 2010
- 2.The Respondents shall, within the same period, produce signed copies of documents marked 'JO 1, 2 and 3' attached to the replying affidavit sworn by Jude Ochieng on 21st January 2015
- 3.Costs of the application shall be in the petition
- Jurisdiction invoked
- Article 35(1)(b) of the Constitution; Sections 12(3)(viii) and 20(4)(a), (d), (5)&(7), (8)(a) of the Industrial Court Act, 2011; Rule 17 of the Industrial Court (Procedure) Rules, 2010; Section 69 of the Evidence Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Paul Masinde Simidi v National Oil Corporation of Kenya Limited & another [2015] KEELRC 854 (KLR)", Case Analysis (2015). Not stated in the judgment (petition filed on 4th November 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/854/eng@2015-06-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.