Otieno v University of Nairobi & another; Kenya Union of Domestic, Hotels, Educational Institutions Hospitals And Allied Workers (KUDHEIHA) University of Nairobi Chapter (Interested Party) (Miscellaneous Application E130 of 2023) [2024] KEELRC 970 (KLR)

The court accepted that production or refusal of documents is an administrative action ordinarily subject to the exhaustion doctrine. However, the application also sought enlargement of time to lodge an internal appeal, which is neither a review under the Fair Administrative Action Act nor a matter within the Commission on Administrative Justice's mandate under the Access to Information Act. Since section 14(1) is not couched in mandatory terms and severance would impede access to justice, the doctrine could not defeat the entire application.

While the Civil Procedure Act and Rules apply to the ELRC only in cases of lacuna, the application was anchored also on Articles 47, 50 and 159 of the Constitution and on 'all enabling provisions of the law', under which the ELRC (Procedure) Rules, 2016 can be inferred. The post-2010 constitutional shift away from strict insistence on pleading form, exemplified by the Mutunga Rules, means the mode of initiation cannot invalidate an application on non-contentious matters.

A liberal reading of section 12 of the ELRC Act yields jurisdiction to enlarge time where an employer's inaction impedes statutory employee protections. The court found the annexures to the Applicant's petition were not the same documents sought. Procedural fairness extends to post-termination internal appeals, so a reasonable employer must supply documents facilitating the appeal, and no prejudice was asserted.