Court Enforces Commission’s Access To Information Decision

Court Enforces Commission’s Access to Information Decision The Employment and Labour Relations Court has issued a judgment that adopted the order of the Commission on Administrative Justice under the Access to Information Act, 2016.

The Court, sitting in Nairobi, on Thursday, June 15, 2023, issued the judgment following a case where Mr. David Mugasia moved to court to have the Commission’s order adopted by the court as provided under section 23(5) of the Act after the Kenya Commercial Bank (KCB) failed to comply with the order of the Commission. The case arose out of an appeal where Mr. Mugasia requested information under section 8 of the Access to Information Act, 2016, to KCB through the Human Resource Manager to provide him with the following documents; 1. Copies of employment contracts for the years 2015 to 2019 2. Signed off copies of all Job Descriptions (JDs) from 2015 to 2019 3. Signed off copies of all end-year Balance Score Cards (BSCs) from 2015 to 2019 KCB did not respond to the request for information and the reminder emails dated 15th, 23rd, and 28th, April 2021. Aggrieved by the development, Mr. Mugasia made an appeal for review to the Commission in line with section 14 of the Act on 28th April, 2021. The Commission considered the matter and on 11th June 2021, requested the Humana Resource Manager, KCB, to respond to the information request in line with section 9(4) of the Access to Information Act, 2016.

In its response to the Commission on 23rd July 2021, the Bank’s Head, Employment Relations and Wellness indicated that the requested documents were provided to Mr. Mugasia as and when the various documents were generated and executed between him and the Bank. The Commission reviewed the response and on 11th August 2021 advised that the Bank releases the requested information. “It is the Commission’s considered view that as the custodian of the information requested, it should be availed to allow the applicant to exercise his right to a fair hearing in the matter before the Ministry of Labour,” read the order of the Commission. The Bank did not comply, prompting the Commission to issue an order on 5th May, 2022. “The Commission opines that the requested information is public information/ records held by your authority. Under the Access to Information Act, the right of access to information is absolute unless limited by section 6 of the same Act.

Therefore, the Commission pursuant to powers granted under section 23 (2)(a) of the Access to Information, 2016 determines that the Group Human Resource, Kenya Commercial Bank does facilitate access to information and records held relating to the request for information made by David Mugusia through an email dated 28th April 2021 and that compliance to be within seven days hereof,”read the order of the Commission. The Bank did not comply with the order of the Commission nor did it appeal the decision within twenty-one days as provided by section 23 (3) of the Access to Information Act.

The inaction by KCB prompted Mr. Mugusia to move to court and have the order of the Commission enforced. In its response to the application, KCB stated that the Commission acted outside its statutory mandate as it purported to instigate investigations into a matter that was already pending before the Ministry of Labour and the Employment and Labour Relations Court and by that argued that the order issued by the Commission on 5th May 2022 was invalid and incapable of adoption for purposes of enforcement. In his analysis, the Hon. Justice Bernard Odongo noted that;

1. The law entitles Mr. Mugusia to apply for enforcement of the Commission’s order as provided in section 23 (5) of the Access to Information Act, 2016
2. Section 23 (3) of the Access to Information Act provides that a person who is not satisfied with the orders made under sub section (2) may appeal to the High Court within twenty-one days from the date the order was made.
3. The records did not show that KCB invoked section 23 (3) of the Access to Information Act to challenge the Commission’s decision of 5th May 2022. Instead, the Bank sought to challenge the validity of the order through the adoption proceedings, it was therefore, not open to KCB to try and use the proceedings as a forum for challenging the validity of the Commission’s order of 5th May 2022 after failing to challenge the decision by way of appeal as provided in law.

Based on the analysis, Hon. Justice Odongo granted leave to enforce the orders of the Commission as an order of the court. “Accordingly, the application dated 3rd January 2023 is allowed as against KCB with the consequence that the order of the Commission contained in a letter dated 5th May 2022 is adopted as the order of the court. Accordingly, KCB is ordered to supply the applicant the documents set out in the Commission’s order of 5th May 2022 within seven days,” read the judgment.