Kiandiko v Tearchers Service Commission (Petition E154 of 2022) [2023] KEELRC 617 (KLR)
The bottom line
#A Kenyan employment court ordered an employer to hand over disciplinary records, confirming employees can use constitutional access-to-information rights to get evidence.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petitioner is entitled to access of the listed records under article 35 of the Constitution
Yes - the records were at the centre of the disciplinary controversy, are relevant and necessary for the just resolution of the dispute, and disclosure can legitimately issue against the Respondent
The court characterised the application as asserting the Petitioner's right to information under article 35, which undergirds pre-trial discovery in civil proceedings. The right is not absolute but any limitation must meet article 24, with the burden on the person alleging limitation. A cursory reading of the pleadings showed the records were central to the disciplinary case and specifically referred to in the Petition, hence relevant and necessary. Respondent's objections on merits, third-party custody and partial supply were unsworn and unsupported by specifics.
Whether confidentiality justifies refusal of disclosure
No - confidentiality by itself does not defeat a disclosure order for documents that would aid the court in determining the matter
Relying on the Court of Appeal in ABN Amro Bank NV v Kenya Pipeline Company Limited, the court held that confidentiality is not a basis for refusing discovery where the documents would aid the court. The court nonetheless tempered the order with redactions: salary details of specific officers and of David Ngetich were to be withheld or redacted, and the DCI statement was to be supplied as recorded and shared with the Respondent.
Whether the Respondent's factual objections, raised without affidavit evidence, could defeat the application
No - factual assertions made without oath have greatly diminished probative value
The Respondent asserted that some records originated from the Petitioner, were in third parties' custody, or had already been supplied, and questioned the suitability of the Petition as a constitutional pleading. The court noted these were matters of fact which ought to have been responded to on oath, and that no specifics were supplied. The unsworn assertions therefore carried little weight and could not displace the prima facie entitlement to disclosure.
Legal principles established
#- At an application for disclosure, the court only considers relevance and whether the information is within the respondent's power, not the merits of the petition
- Confidentiality alone is not a sufficient ground to deny disclosure of documents necessary for the just resolution of a dispute
- The burden of justifying a limitation on a constitutional right lies with the person alleging/imposing the limitation
- Unsworn factual assertions have greatly diminished probative value
Court orders
#- 1.The Respondent to provide the Petitioner with certified copies of the records listed in paragraph five of the ruling, subject to stated limitations (salary structures without names of specific officers; the Petitioner's DCI statement as recorded and shared; David Ngetich's appointment and promotion letters with salary information redacted)
- 2.The records to be supplied to the Petitioner within 14 days of the order
- 3.Costs of the application to be in the cause
- Jurisdiction invoked
- Article 35 of the Constitution (right of access to information), in a pending constitutional Petition before the ELRC
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kiandiko v Tearchers Service Commission (Petition E154 of 2022) [2023] KEELRC 617 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/617/eng@2023-03-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.