Kenya Electrical Trades and Allied Workers Union v Kenya Power and Lighting Company [2022] KEELRC 642 (KLR)
The bottom line
#Kenya's Employment Court stopped Kenya Power from forcing staff to hand over private financial and family information through an unconstitutional vetting exercise.
What this practically means
#Executive summary
#Key legal issues
#Whether the vetting exercise mandated by the impugned circular was unconstitutional
Yes - the vetting was unconstitutional, ultra vires the Taskforce's terms of reference, and in breach of Articles 31 and 41
The court noted that Kenyan law only provides for vetting of employees under the Public Officer's Ethics Act via wealth declaration forms limited to the employee, spouse and dependent children. The impugned circular required far more, including information about third parties - parents, siblings, business associates - infringing their privacy rights. Unlike past vetting of judges and police, this vetting had no legal framework, defined objectives, procedure or consequences, and exceeded the Taskforce's terms of reference.
Whether the vetting violated the recognition and collective bargaining agreements
Yes - the Petitioner was not consulted before the impugned memo
The court found that the Respondent issued the vetting memo without consulting the union on a matter likely to adversely affect its members, contrary to the parties' recognition agreement and CBA. The Respondent's letter of 19th November 2021, which it claimed constituted notification, was issued after the vetting memo and could not amount to consultation.
Whether the Respondent was entitled to limit the right to privacy under Article 24
No - the limitation was not prescribed by law nor justified under Article 24
The court applied Article 24, which permits limitation of a right only by law and only to the extent reasonable and justifiable in an open democratic society. The vetting had no anchoring in law, exceeded the Public Officer's Ethics Act framework, and the Respondent did not state the purpose for which the extensive third-party information was required or what would happen if third parties refused to divulge it.
Legal principles established
#- Employment vetting must be anchored in law with a defined legal framework, objectives, procedure and consequences.
- Any limitation of the right to privacy must meet the test in Article 24 of the Constitution.
- Notification issued after an impugned decision cannot constitute consultation.
Court orders
#- 1.Declaration that the vetting of employees by the Respondent as per the circular issued on 18th November, 2021 and the call for the confidential information are unconstitutional and of no legal effect
- 2.Declaration that the members of the Petitioner have a constitutional right to privacy
- 3.Permanent injunction restraining the Respondent, its servants and agents from conducting a vetting exercise on its employees who are members of the Petitioner in the manner set out in the circular dated 18th November 2021
- 4.Liberty granted to the Respondent to vet employees within the provisions of the law and their terms of service and to require submission of wealth declaration forms as set out in the law
- 5.Respondent to bear the costs of the petition
- Jurisdiction invoked
- Constitution of Kenya, 2010 – Employment and Labour Relations Court jurisdiction over labour rights and constitutional rights of employees (Articles 31 and 41); Article 159(2)(d) and Article 48 also invoked
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Electrical Trades and Allied Workers Union v Kenya Power and Lighting Company [2022] KEELRC 642 (KLR)", Case Analysis (2022). Petition (ELRC, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/642/eng@2022-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.