[2019] KEELRC 1909 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAKURU

CAUSE NO.449 OF 2017

KENYA PLANTATION AND

AGRICULTURAL WORKERS UNION........................................CLAIMANT

VERSUS

AGRICULTURA EMPLOYERS ASSOCIATION............1stRESPONDENT

KENYA EXPORT FLORICULTURE,

HORTICULTURE &ALLIED WORKERS.....................2ndRESPONDENT

RULING

The 2nd respondent, Kenya Export Floriculture, Horticulture & Allied Workers is seeking the court to direct the 1st respondent to file important document(s) of a comprehensive list of its members so that the respondent can it to protect its rights and fundamental freedoms in regard to the suit herein.

The basis of the orders sought is article 35(1) of the Constitution, 2010 and Rule 14(10) of the Employment and Labour Relations Court (Procedure) Rules, 2016.

The 1st respondent opposed the application by the 1st respondent on the grounds that on 5th December, 22018 the representative of the 2nd respondent was at their offices and was supplied with a list of 180 members which is a list narrowing down those members relevant to the 2nd respondent’s concern and from the sector covered by the parties. The 1st respondent has a wider membership comprised of ranchers and associate members not growers or in agriculture. Other members include trainers, educational institutions and have no relevance herein with regard to matters being addressed by the parties or of interest to the 2nd respondent.

The reason for which the 2nd respondent is seeking for lists of all 1st respondent members is not disclosed and such demands are interfering with the rights of the 1strespondent. Where the 1st respondent representative was not satisfied with the provided list, there are further details on www.agriemp.co.kewhere such details are published for the public.The claimant opposed such application on the grounds that the list of 1st respondent members sought by the 2nd respondn4t are public knowledge and published on the respondent’s web page where any party keen to know the membership can have access.

Article 35(1) of the Constitution provides that;

1) Every citizen has the right of access to—

a) information held by the State; and

b) information held by another person and required for the exercise or protection of any right or fundamental freedom.

Parliament has also enacted the Access to Information Act, 2016 and Section 4 of the Act which is material, herein provides for the procedure to access information held by the state or private persons. Section 4(2) and (3) provides;

2) Subject to this Act, every citizen's right to access information is not affected by—

a) any reason the person gives for seeking access; or

b) the public entity's belief as to what are the person's reasons for seeking access.

3) Access to information held by a public entity or a private body shall be provided expeditiously at a reasonable cost.

In this regard, the 2nd respondent is seeking for the list of all 1st respondents’ members for the purpose of addressing the claims made against it herein by the claimant in the cause herein. The 1st respondent’s case is that such information has been provided when the 2nd respondent attended at its offices on 5th December, 2018 and in any event, on the website all such details is available.

The 2nd respondent representative asserted in court that he has not been able to access the website of the 1st respondent so as to study the list of its members as published.

The argument of the 2nd respondent that they require the list of members of the 1st respondent so as to protect their rights is secured under article 35 of the Constitution, 2010 and also under the Access to Information Act, 2016. Such right(s) however carry a responsibility. To access any required information by an applicant, it must be at their reasonable cost.

Where the 1st respondent has published its list of members on the website, such information is available to any citizen and the cost is to access the website and access such information. The 1st respondent has further provided the 2nd respondent with a list of 180 of its members in the sector covered by the 2nd respondent.

The court has taken time to navigate the 1st respondent’s website at www.agriemp.co.ke[https://www.agriemp.co.ke/ last accessed 20th December, 2018] and therein accessed the following details;

- Flower growers members;

- General agriculture members; and

- Associate members.

The above settled the cause of action leading to the claim herein and the orders sought against the respondents by the claimant relate to the recognition agreement dated 17th August, 2017 signed between the Respondents and which is challenged by the claimant. Such matter(s) addressed in their context, the exercise of rights under article 35(1) of the constitution, 2010 set out above, and putting into account section 4 of the Access to Information Act, 2016 the application to have all the list(s) of the 1st respondent members filed with the court or provided to the 2nd respondent is an overreach. Even where such information, material or records are required, the relevant material(s) and information are now provided with the list issued to the 2nd respondent by the 1st respondent and the website is open for any further details.

Application by the 2ndrespondent is well addressed with the relevantinformation provided. Parties shall take a mutual hearing date for the mainsuit.

Delivered at Nakuru this 5th day of February, 2019.

M. MBARU JUDGE

In the presence of: ……………………………………