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ELRCAllowedPetition dated March 3, 2022· [2023] KEELRC 76 (KLR)

Munywoki v Metsec Cables Limited (Petition E047 of 2022) [2023] KEELRC 76 (KLR)

Employment and Labour Relations Court
20 January 2023
1,934 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court confirmed that ignoring a former employee's written request for dismissal documents violates the constitutional right of access to information.

What this practically means

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Executive summary

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The petitioner, formerly employed by the respondent, was indefinitely suspended effective November 20, 2020 to pave way for investigations into a theft charge at Milimani Chief Magistrates' Court, and was summarily dismissed on or about July 6, 2021. Through her advocates she twice demanded (letters of November 29, 2021 and January 10, 2022) certified copies of minutes, documents, representations and any proceedings used to arrive at the dismissal decision. The respondent ignored the demands. She petitioned the Employment and Labour Relations Court alleging violation of articles 29, 35(1)(a) & (b), 41(1) and 47(1) of the Constitution and sections 4 and 6 of the Fair Administrative Actions Act, seeking an order compelling supply of the documents, plus costs. The respondent replied that the petition disclosed no reasonable cause of action, was an abuse of process, and that the cause was contractual and should have been brought by memorandum of claim, invoking authorities to argue that constitutional litigation was superfluous where the Employment Act provides remedies. The court framed two issues: whether there was a constitutional violation and whether the orders sought should be granted. It held the primary dispute was the failure to provide documents relating to the dismissal - not the dismissal's fairness - bringing it within article 35(1)(a) and (b) and section 4 of the Access to Information Act. The respondent did not dispute receipt of the demand letters and offered no reasons for withholding the documents. Following Katiba Institute, the court found the article 35 right violated and unjustified. The petition was allowed: the respondent was directed to supply the documents within 30 days and to bear the costs.

Key legal issues

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01

Whether there was a constitutional violation of the petitioner's right of access to information under article 35(1)(a) and (b)

Holding

Yes - the respondent received two demand letters seeking documents relating to the disciplinary process and, without giving any reasons, failed to supply them, violating article 35 and section 4 of the Access to Information Act.

Reasoning

The court held that the primary order sought - supply of documents, records and proceedings relating to the summary dismissal - brings the dispute squarely within article 35(1)(a) and (b) and section 4 of the Access to Information Act, which guarantee every citizen access to information held by the State or another person where required to protect a right. The information was needed to assert the right to fair labour practices and fair hearing. The respondent did not dispute receiving the demand letters and gave no reasons for its failure to supply the documents, so the violation stood unjustified.

p. 4
02

Whether the petitioner should have approached the court by memorandum of claim rather than a constitutional petition

Holding

No - the dispute concerns failure to provide documents relating to the dismissal, not the fairness of the dismissal itself, so the petition was properly before the court.

Reasoning

The respondent argued the cause of action was breach of the employment contract requiring a memorandum of claim, and that invoking the Constitution was superfluous where statutory remedies exist under the Employment Act. The court rejected this, holding that the primary dispute was the respondent's failure to provide the documents relating to the summary dismissal - it had nothing to do with the fairness of the dismissal - and the petition therefore properly disclosed a violation of article 35 rights.

p. 4

Legal principles established

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  • Every citizen has a constitutional right of access to information held by the State or by another person where required for the exercise or protection of any right or fundamental freedom, and a failure to supply such information without justification violates article 35.
  • Where the primary dispute is failure to provide documents/information rather than the fairness of a dismissal, the constitutional petition route is proper and the claimant need not file a memorandum of claim.

Court orders

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  1. 1.The respondent directed to supply the petitioner with copies of the documents sought through her Advocate's letters dated November 29, 2021 and January 10, 2022 within 30 days from the date of the Judgment
  2. 2.The respondent to bear the costs of the Petition

Authorities

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Legislation

  • Constitution of KenyaArticles 29(1)(a) & (f), 35(1)(a) & (b), 41(1), 47(1), 159(2)(d), 48
  • Fair Administrative Actions ActSections 4(1) and (2), 6(1)
  • Access to Information ActSection 4(1), (2), (3), (4), (5)
  • Employment Act(referenced generally as providing remedies)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (5)

  • Agnes Wacu Gagoto v Kenya Kazi Services Limited
    (2020) eKLR
  • Chelimo A Esther Martin A Lotte & 15 others v John Lonyangapuo & 2 others
    [2018] eKLR
  • Jane Angila Obando vs Teachers Service Commission & 2 others
    [2020] eKLR
  • Gabriel Mutava & 2 others v Managing Director, Kenya Ports Authority & another
    (2016) eKLR
  • Katiba Institute v Presidents Delivery Unit & 3 others
    [2017] eKLR
Jurisdiction invoked
Article 35(1)(a) & (b) of the Constitution read with section 4 of the Access to Information Act; petition brought in the Employment and Labour Relations Court

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, "Munywoki v Metsec Cables Limited (Petition E047 of 2022) [2023] KEELRC 76 (KLR)", Case Analysis (2023). Petition dated March 3, 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/76/eng@2023-01-20

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