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ELRCDismissedNot stated in judgment· [2015] KEELRC 690 (KLR)

Okemwa & 8 others v Judicial Service Commission (Cause 16 of 2014) [2015] KEELRC 690 (KLR)

Employment and Labour Relations Court
31 July 2015
1,580 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 ruled you cannot force the other side to hand over documents that help prove their own defence in a case.

What this practically means

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Executive summary

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In an interlocutory ruling in an employment dispute between nine Judiciary employees (Claimants) and the Judicial Service Commission (Respondent), the court dealt with a notice seeking production of documents filed by the Claimants on 17th March 2015. The Respondent had already produced a large number of the documents on 8th and 17th June 2015, but objected to the production of the remainder, including the JSC Audit Committee report on the Claimants' benefits and allowances, original appointment letters signed by the former Chief Registrar, procurement committee appointment letters and attendance sheets, a memo of 13th August 2012 concerning interviews for Storekeeper positions, and imprest registers for several Claimants. The Respondent argued these were confidential, vague, non-existent, or that the Claimants were on a fishing expedition. The Claimants said the documents were needed to rebut the Respondent's allegation that their appointment letters were irregularly signed, to defend a counterclaim for honorarium paid to the 2nd Claimant, and to answer allegations of irregular imprests. Applying Oluoch v Charagu, Timothy Njoya v Attorney General and National Social Security Fund Trustees v Dr. Sally Kosgei, the court held that production orders do not enable a party to obtain proof of the other party's pleadings. Because the contested documents related to the Respondent's own defence and counterclaim, the Claimants were in effect asking the court to make the Respondent prove its case at the discovery stage. The production notice was overruled with costs in the cause.

Key legal issues

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01

Whether production of documents central to the Respondent's defence and counterclaim could be compelled by the Claimants

Holding

No - since it is not the Claimants' responsibility to prove the Respondent's defence and counterclaim, no basis was laid for production of the documents in issue, and the production notice was overruled

Reasoning

The court noted that most documents sought had already been produced. Those remaining in contention related to the Respondent's defence or counterclaim, including the Audit Committee report, appointment letters and imprest registers. Applying the principle in National Social Security Fund Trustees v Dr. Sally Kosgei, production orders do not exist to enable one party to obtain proof of the other's pleadings. Each party bears its own burden of proof, and a party failing to produce documents aiding its case works against itself. Ordering production would let the Claimants prove the Respondent's case for it, an irregular mode of litigation.

p. 5
02

The requirements for seeking production of or access to documents held by an opposing party

Holding

A party seeking production must show the documents are specific and important for the advancement of its own case; where access to information is sought under Article 35(1), the applicant must state the information required, the right to be advanced, and how the information would assist

Reasoning

The court invoked Oluoch v Charagu (per Nyamu J) for the requirement that documents sought be specific and important for the applicant's case, and Timothy Njoya v Attorney General (per Lenaola J) for the requirements of an Article 35(1) application. Measured against these standards, the Claimants had laid no basis for the documents they still demanded, as those documents concerned the Respondent's own case rather than theirs.

p. 5

Legal principles established

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  • A party to a suit may seek production of documents in the possession of the opposing party if the documents are specific and important for the advancement of that party's case
  • An order for production of documents does not allow a party to obtain proof of the other party's pleadings at the discovery and inspection stage

Court orders

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  1. 1.The production notice is overruled
  2. 2.Costs of the production notice in the cause

Authorities

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Legislation

  • Constitution of KenyaArticle 35(1)

Cases cited (3)

  • Oluoch v Charagu
    (2003) 2 EA, 649
  • Timothy Njoya v Attorney General and another
    [2014] eKLR
  • National Social Security Fund Trustees v Dr. Sally Kosgei & Another
    [2005] eKLR
Jurisdiction invoked
Employment and Labour Relations Court original jurisdiction; references to Article 35(1) of the Constitution on access to information

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, "Okemwa & 8 others v Judicial Service Commission (Cause 16 of 2014) [2015] KEELRC 690 (KLR)", Case Analysis (2015). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/690/eng@2015-07-31

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