Republic v Isaiah Kubai & another; Commission on Administrative Justice (Interested Party) Ex-Parte Duncan Muthusi [2019] KEELRC 43 (KLR)

The dispute concerns a trade union, its officials and a member, falling squarely within the jurisdiction conferred by the Employment and Labour Relations Court Act, 2011 read with Articles 162(2)(a) and 165(5) of the Constitution. The parties were agreed on jurisdiction and the Court so returned.

The letter of 30.07.2019 clearly stated the Commission's determination under section 23(2)(a) of the Access to Information Act, 2016, directing the General Secretary to facilitate access to information within seven days. The Court found no reason to doubt that a determination and order as envisaged in the Act had been made.

The applicant demonstrated that the Commission made the order, the order had not been complied with per the advocates' letter of 05.08.2019, no appeal was preferred by the respondents, and the time to appeal had lapsed. Under section 23(5), absent an appeal, the party in favour of whom the order was made may apply ex parte for leave to enforce it as a decree.

The Commission found the union to be a private body holding public information or records. Articles 35, 10 and 41 apply to both public entities and private bodies, and the Act's provisions invoked confer wide jurisdiction over both. Challenges to the Commission's decision, including alleged usurpation of the Registrar of Trade Unions' powers, were beyond the scope of leave proceedings.

The application was purely about leave under section 23(5); all other prayers collapsed as going beyond the scope of proceedings under that section. The stay prayers were outside the scope and purpose of the application and were declined.