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Ombudsman Kenya

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Ombudsman decisions on access to information enforceable

The Employment and Labour Relations Court sitting in Nairobi on Friday, 29th November 2019 issued a judgement which adopted the decisions and orders of the Commission on under the Access to Information Act, 2016.

This follows a court case where Mr. Duncan Muthusi, a member of the Banking Insurance and Finance Union(BIFU) moved to court to have the Commission’s order adopted by the court as provided under section 23(5) of the Act.

After the General Secretary of BIFU failed to comply with the orders of the Commission The case arose out of a complaint where Mr. Muthusi made a request for information to BIFU under section 8 of the Act on 4th June 2019. The request for access to information was made for:

1. Copies of audited accounts of BIFU for the last five years;
2. Register of members for both the national and branches;
3. List of branch officials;
4. Minutes of the annual delegates conference for the last five years and notices convening the conferences; and

5.Details of the physical branch offices.

However, BIFU National General Secretary did not supply the information requested within the timelines outlined in the Act which prompted Mr. Muthusi to make an application for review of BIFU’s action to the Commission under section 14(1)(a) of the Act.

The Commission considered the matter extensively and made a decision on 30th July 2019 directing that the National General Secretary, BIFU, facilitate access to information as requested within seven days.

The National General Secretary failed to implement the decisions and orders of the Commission and failed to appeal the decision within twenty-one days, prompting Mr. Muthusi to move to court to have the Commission’s orders adopted as orders of the court.

In his judgment, Justice Byram Ongaya granted leave to enforce the orders of the Commission and to enforce the orders of the court. The court further found as follows:

i. That the determination of the Commission was a decision and an order as envisaged under section 23(2) of the Act;

ii. That the Commission has jurisdiction to entertain complaints against public and private bodies in relation to the Access to Information Act, 2016, and make binding decisions and orders;

iii. That Mr. Muthusi satisfied all the requirements under the Act to justify an order of leave as envisaged in section 23(5) of the Act.

The Commission made an order and no appeal against the order was preferred on the part of the National General Secretary and BIFU and the time prescribed for appeal lapsed;

iv. While BIFU is a private entity, the information held by it was deemed to be public information and therefore subject to disclosure under the Act; and

v. It was not open to BIFU to challenge the merits of the decision and orders of the Commission during enforcement before the High Court. Instead, the proper approach would be an appeal to the High Court in line with section 23(4) of the Act.