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ELRCPartially AllowedPetition No. 135 of 2018· [2020] KEELRC 1843 (KLR)

Agnes Wacu Gatoto v Kenya Kazi Services Limited [2020] KEELRC 1843 (KLR)

Employment and Labour Relations Court
13 January 2020
HWHellen S. Wasilwa
1,513 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that an employee can demand her employer's disciplinary deliberations under the constitutional right to access information.

What this practically means

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Executive summary

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The Petitioner, formerly employed by the Respondent, petitioned the Employment and Labour Relations Court alleging that her disciplinary process and dismissal breached Articles 27, 29, 35, 41, 47 and 50 of the Constitution. She sought a declaration that her Article 35 right of access to information was violated and an order of mandamus compelling the Respondent to issue her a duly signed copy of the disciplinary panel deliberations, plus costs. The Respondent countered that the Petitioner's dismissal followed a lawful disciplinary process over complaints of harassment, discrimination and misuse of resources; that she was informed of her right to appeal but never did; that the documents she requested (a performance bonus letter and evaluation form) did not relate to her termination; and that the deliberations of management were internal decision-making material it was not obliged to keep under Section 73 of the Employment Act. It urged dismissal with costs. The dispute was disposed of by written submissions. The court framed the issue around Article 35(1)(b), which guarantees every citizen access to information held by another person and required for the exercise or protection of any right. Finding that the Respondent never denied the deliberations existed, identified no prejudice from disclosure, and that the Petitioner needed the document to assess infringement of her rights, the court held her Article 35 right was infringed. It ordered disclosure within 30 days, with an adverse presumption on default, and awarded the Petitioner costs. The petition succeeded on the access-to-information head.

Key legal issues

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01

Whether the disciplinary panel deliberations constituted information accessible under Article 35(1)(b)

Holding

Yes - the deliberations of the meeting that led to the Petitioner's dismissal were information held by the Respondent and required for the exercise or protection of her rights; the Respondent did not deny the meeting occurred and showed no prejudice from disclosure.

Reasoning

The court applied Article 35(1), holding that a citizen may access information held by another person where required to exercise or protect a right. The Respondent did not deny the deliberations existed and identified no prejudice. The Petitioner explained the deliberations would enable her assess infringement of her rights. The court found her request fair and necessary.

p. 3
02

Consequence of non-compliance with the disclosure order

Holding

If the Respondent fails to supply the information within 30 days, the court will presume the information does not exist or is prejudicial to the Respondent.

Reasoning

To give the declaration practical effect, the court attached a default presumption to non-compliance within the 30-day period, thereby shifting the evidential consequence of non-disclosure onto the Respondent.

p. 3

Legal principles established

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  • Every citizen has a right of access to information held by another person and required for the exercise or protection of any right or fundamental freedom, and an employer must supply disciplinary deliberations needed by an employee to protect her rights where no prejudice is shown.

Court orders

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  1. 1.A declaration that the Petitioner's right to access information under Article 35 of the Constitution was infringed
  2. 2.That the Respondent supply the information sought within 30 days, failing which it would be assumed the information does not exist or is prejudicial to the Respondent
  3. 3.That the Respondent pay the costs of the suit

Authorities

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Legislation

  • Constitution of KenyaArticles 27, 29, 35, 41, 47, 50
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 10(2)(c) and (d)
  • Employment ActSections 43, 73
  • Civil Procedure ActSection 27(1)

Cases cited (6)

  • Nairobi Law Monthly Company Limited vs. Kenya Electricity Generating Company & 2 Others
    [2013] eKLR
  • Anarita Karimi Njeru vs. Republic
    [1979] KLR 154
  • Mumo Matemu vs. Trusted Society of Human Rights Alliance & 5 Others
    [2013] eKLR
  • Jane Achieng & Another vs. University of Nairobi
    [2015] eKLR
  • Paolo Murri vs. Gian Battista Murri & Another
    [2000] eKLR
  • Cecilia Karuru Ngayu vs. Barclays Bank of Kenya & Another
    [2016] eKLR
Jurisdiction invoked
Article 35 of the Constitution of Kenya (petition alleging violation of Articles 27, 29, 35, 41, 47 and 50)

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, "Agnes Wacu Gatoto v Kenya Kazi Services Limited [2020] KEELRC 1843 (KLR)", Case Analysis (2020). Petition No. 135 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1843/eng@2020-01-13

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