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ELRCStruck Out· [2025] KEELRC 996 (KLR)

Commission for Human Rights and Justice v Fursyth t/a Maasai Resort, Mombasa Maasai Beach Bar and Restaurant Maasai Koroga Hotel Mombasa; Ministry of Labour & another (Interested Parties) (Petition E017 of 2024) [2025] KEELRC 996 (KLR)

Employment and Labour Relations Court
27 March 2025
MMM. MBARŨ
1,383 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 struck out an NGO's bid to access employees' pay records, ruling employee privacy beats outsiders' information rights.

What this practically means

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Executive summary

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The respondent filed a notice of preliminary objection dated 10 January 2025 against the petitioner's constitutional petition, contending that the petition was incurably defective, an abuse of process, filed in the wrong court, and that the court lacked jurisdiction, since the matter concerned human rights outside employment matters and the petitioner purported to act for unnamed employees who had not filed affidavits. The petitioner, a non-governmental human rights organization, responded that Article 162(2)(a) of the Constitution establishes this court for employment and labour relations disputes, Article 165 removes such matters from the High Court, and section 87 of the Employment Act and section 12 of the Employment and Labour Relations Court Act confer jurisdiction. The petition alleged that the respondent was unlawfully deducting employees' salaries to recover tax arrears and penalties paid to the Kenya Revenue Authority, contrary to section 19 of the Employment Act, and sought a declaration that the respondent's failure to supply payroll/master roll and pay slips following a request dated 8 November 2024 violated Article 35, together with an order of mandamus. The court held that it is clothed with jurisdiction to hear constitutional petitions, disposing of the jurisdictional limb of the objection. However, on the merits it held that payroll and pay slip records contain employees' personal data, which must be protected and cannot be released to a third party without consent; the affected employees had not authorised the petitioner. Weighing the right to know against the right to privacy, the court held the employees' privacy rights must prevail. The orders sought were refused, the petition was struck out, and each party was ordered to bear its own costs.

Key legal issues

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01

Jurisdiction of the ELRC over constitutional petitions

Holding

The court has jurisdiction; the preliminary objection on jurisdiction fails

Reasoning

Article 162(2)(a) establishes the court for employment and labour relations disputes; Article 165(5) removes such disputes from the High Court; section 12 of the ELRC Act confers jurisdiction, and section 87 of the Employment Act empowers the court to determine employer-employee rights. The court relied on National Social Security Fund Board of Trustees and Arendse v Meta Platforms, as affirmed in Mugendi.

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02

Whether a third party NGO may obtain employees' pay slips and payroll records under Article 35

Holding

No - the employees' right to privacy prevails and the records cannot be released without their consent

Reasoning

Payrolls and pay slips contain employees' personal details. Such records should ordinarily be sought by the employee under sections 19 and 20 of the Employment Act. The employer must protect personal data and not release it to third parties without consent. The affected employees did not authorise the petitioner. Balancing the right to know against the right to privacy, the petitioner's rights fail because it is outside the employment relationship.

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Legal principles established

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  • The ELRC is clothed with jurisdiction to hear and determine constitutional petitions raising employment and labour relations disputes, which are removed from the High Court under Article 165(5)
  • Article 35 rights to information cannot be enforced to obtain third parties' personal employment records where that would infringe the employees' right to privacy

Court orders

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  1. 1.The orders sought in the petition shall not be issued
  2. 2.The petition is struck out
  3. 3.Each party is to bear its own costs
Jurisdiction invoked
Article 162(2)(a) of the Constitution; Section 12 of the Employment and Labour Relations Court Act

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, "Commission for Human Rights and Justice v Fursyth t/a Maasai Resort, Mombasa Maasai Beach Bar and Restaurant Maasai Koroga Hotel Mombasa; Ministry of Labour & another (Interested Parties) (Petition E017 of 2024) [2025] KEELRC 996 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/996/eng@2025-03-27

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