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ELRCPartially AllowedNot stated in judgment (Industrial Court cause)· [2015] KEELRC 337 (KLR)

Vincent Muema Mutuku v Rift Valley Railways (Kenya) Limited [2015] KEELRC 337 (KLR)

Industrial Court of Kenya
29 October 2015
HWHellen Wasilwa
2,483 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court allowed salary records to be inspected for a discrimination claim, but refused to expose a non-employee's private payslips and certificates.

What this practically means

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Executive summary

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The Claimants, who have sued seeking damages for unlawful and unfair termination, damages for disparity in pay and discrimination, moved the Industrial Court by Notice of Motion dated 28 April 2015 under the Industrial Court Act and its Procedure Rules. They sought an order compelling the Respondent's Human Resource Manager to produce, under oath, certified copies of the payslips and academic qualification papers of one Faith Kiura, a management trainee engaged in 2013, failing which the Respondent's reply should be struck out. The application was supported by the affidavit of Vincent Muema Mutuku. The Claimants argued the documents were in the Respondent's custody, relevant and necessary for proving workplace discrimination, and invoked Article 35(1)(b) on access to information and the discovery provisions. The Respondents opposed, citing Article 31 privacy rights, Section 5(4)(b) of the Employment Act, and contending that Faith Kiura was a third party and stranger to the claim. The court framed three issues: relevance, privacy/privilege, and the orders to issue. It found the documents relevant to the discrimination claim, but held the right to privacy, though limitable, could not justify exposing a non-party's documents without her presence, applying the audi alteram partem principle from Pashito Holdings. Instead, the court directed the Labour Commissioner or a delegated officer to inspect the Respondent's employment records for the preceding 36 months, analyze salaries against academic credentials per work done, and file a report within 60 days without disclosing names. Mention was set for directions on the main suit. The relief sought was effectively partially granted through this alternative mechanism, with costs of the application to be in the cause.

Key legal issues

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01

Relevance of the documents sought

Holding

The payslips and academic certificates of Faith Kiura are relevant to the discrimination claim

Reasoning

The court considered the nature of the claim (unfair termination, pay disparity and discrimination) and found the documents would best address the discrimination issue, drawing on Halsbury's Laws of England on the purpose of discovery in providing the basis for fair disposal of proceedings.

p. 4
02

Privacy and privilege over third-party documents

Holding

Although relevant, the documents belong to a third party not before the court, and compelling their production would breach her privacy and natural justice rights

Reasoning

The court balanced relevance against Article 31 privacy rights and the audi alteram partem rule, relying on Pashito Holdings on joining a proper party. It found that production of a non-party's payslips and credentials without her presence would be an improper exercise of discretion.

p. 5
03

Alternative remedy for examining employment records

Holding

The court invoked Section 74 of the Employment Act to direct inspection of employment records by the Labour Commissioner, anonymized, with a report to court

Reasoning

Noting the claimant's substantive grievance about pay practices, the court crafted a compromise: the Labour Commissioner examines the employer's records for 36 months, analyzes salaries against academic credentials per work done, and reports within 60 days without disclosing names.

p. 5

Legal principles established

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  • The right to privacy under Article 31 is not absolute and may be limited under Article 24 in light of the right of access to information under Article 35
  • A court should not order production of documents relating to a third party who is not a party to the claim without affording that third party a hearing, as that infringes natural justice and privacy

Court orders

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  1. 1.The Labour Commissioner or an officer delegated by him to visit the Respondents' premises and be provided with employment records for the preceding 36 months
  2. 2.The Labour Commissioner to examine the amount of salaries paid in the categories of employees vis-a-vis their academic credentials and analyze them per work done and submit a report within 60 days to court without necessarily disclosing their names
  3. 3.The case to be set down for mention to receive the report and for further directions on the hearing of the main suit

Authorities

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Legislation

  • Industrial Court ActSections 3, 12(3)(viii), 20(1), 20(4)(d), 20(5)
  • Industrial Court (Procedure) Rules 2010Rule 16(1)
  • Constitution of KenyaArticles 24, 25, 31, 35(1)(b)
  • Employment Act 2007Sections 5(4)(b), 21, 74, 74(2), 2
  • Civil Procedure Rules 2010Orders 11 and 14

Cases cited (8)

  • Concord Insurance Company Limited vs. NIC Bank Limited
    Nairobi High Court Case No. 175 of 2011 (2013) eKLR
  • Conway vs. Rimmer & Another
    (1968) 1 All ER 874
  • Alfred Crompton Amusement Machines Limited vs Commissioner of Customs and Excise (No. 2)
    1973 2 All ER 1169
  • Leland I. Salano vs. Intercontinental Hotel
    (2013) eKLR
  • Sitati vs. Mumias Sugar Company Limited
    No. 304 (ICK)
  • Baseline Architects Limited & 2 Others vs. National Hospital Insurance Fund Board Management
    (2008) eKLR
  • In the matter of the Principle of gender representation in the National Assembly and the Senate
    (2012) eKLR
  • Pashito Holdings & Another vs. Ndungu & 2 Others
Jurisdiction invoked
Sections 3, 12(3)(viii), 20(1), (4)(d) and (5) of the Industrial Court Act, 2011 and Rule 16(1) of the Industrial Court (Procedure) Rules 2010

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, "Vincent Muema Mutuku v Rift Valley Railways (Kenya) Limited [2015] KEELRC 337 (KLR)", Case Analysis (2015). Not stated in judgment (Industrial Court cause). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/337/eng@2015-10-29

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