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ELRCPartially Allowed· [2016] KEELRC 116 (KLR)

Ann Gichimo v Kenya Ordinance Factories Corporation [2016] KEELRC 116 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
19 December 2016
HWHellen Wasilwa
1,395 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 that documents taken illegally by a former public officer cannot be used in court, though her case survived.

What this practically means

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Executive summary

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The Respondents, acting through State Counsel Amelia Chesiyna, brought a Notice of Motion dated 3rd May 2016 under Sections 4 and 12 of the Industrial Court Act, Order 19 rule 6 of the Civil Procedure Rules and Articles 24, 35 and 73 of the Constitution, seeking to have all documents produced by the Claimant declared inadmissible and the suit dismissed. They argued the documents were sensitive, classified, confidential and could only have been accessed illegally by the Claimant, a former managerial employee who had signed the Official Secrets Act. The Claimant opposed, contending the State Counsel's affidavit was improper, the documents were accessed in the course of her duties, were over five years old and posed no security risk, and that the application was vague and brought almost two years after service. In a further affidavit the Respondents identified the specific documents as those dated 16th February 2016 and filed on 17th February 2016. Justice Hellen Wasilwa held that while all evidence of facts in issue is relevant and producible under the Evidence Act, the Claimant's acquisition of the documents breached Section 11(2)(c) of the Public Officer Ethics Act; her proper course was a notice to produce under Article 35 of the Constitution. Relying on the Omtata petition and Dubai Aluminium, and on Derby v Weldon, the court ordered the specified documents expunged from the record forthwith, with costs in the cause. The suit itself was not dismissed; the inadmissibility order was limited to the identified documents.

Key legal issues

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01

Admissibility of illegally obtained documents

Holding

Documents obtained by a former public officer outside lawful channels are inadmissible and must be expunged.

Reasoning

The court applied Section 11(2)(c) of the Public Officer Ethics Act, holding that a public officer must not use information acquired in connection with official duties for personal benefit. The Claimant admitted obtaining the documents in the course of her duty without a notice to produce, thereby acquiring them illegally. Relying on Dubai Aluminium and Derby v Weldon as cited in Okiya Omtata's Petition, the court found documents generated by improper conduct fall outside legitimate use and ordered expungement.

p. 3
02

Relevance as the touchstone of admissibility

Holding

Evidence is admissible if it proves a fact in issue, but illegality in acquisition defeats its use.

Reasoning

The court began with Section 107 of the Evidence Act framework, noting all evidence of facts in issue is relevant and producible. However, relevance alone did not save the documents because the Claimant's conduct in acquiring them contravened the Public Officer Ethics Act, and no lawful production route (notice under Article 35 / Section 80 Evidence Act) was followed.

p. 3
03

Remedy for illegally held documents

Holding

Following Derby v Weldon, copies of documents obtained illegally are returned and expunged from the record.

Reasoning

The court referred to Derby and Company Limited v Weldon where documents obtained illegally in the Claimant's custody were ordered returned to the Respondent. Applying that approach, the Judge expunged only the documents specified in the further affidavit dated 16th February 2016, rejecting dismissal of the entire suit.

p. 3

Legal principles established

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  • Relevant evidence is admissible so long as it proves the existence or non-existence of a fact in issue under the Evidence Act.
  • A public officer may not use information acquired in the course of official duties for personal benefit, and documents obtained otherwise than as provided by law cannot be relied on in litigation.
  • The lawful avenue for obtaining State-held documents is a notice to produce under Article 35 of the Constitution and Section 80 of the Evidence Act.

Court orders

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  1. 1.The documents complained of, those dated 16th February 2016 and filed on 17th February 2016, be expunged from the record forthwith
  2. 2.Costs in the cause

Authorities

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Legislation

  • Industrial Court ActSections 4 and 12
  • Civil Procedure RulesOrder 19 rule 6
  • Constitution of KenyaArticles 35, 73, 24
  • Evidence ActSections 79(g), 80, and provisions on relevance of evidence
  • Public Officer Ethics ActSection 11(2)(c)

Cases cited (5)

  • Standard Gauge Railway Petition 58 of 2014, Okiya Omtata vs. the Attorney General
    Petition 58 of 2014
  • Lengko Energy UK vs. Kaya Pipeline Company Limited
  • Conway vs Rimmer
    [1968] 1 ALL ER 8 (74)
  • Dubai Aluminum company Limited vs. Al-Alawi
    (1999) 1 WLR 1964
  • Derby and Company Limited and Others vs. Weldon and Others
    (1990) 3 ALL ER 672
Jurisdiction invoked
Section 4 and 12 of the Industrial Court Act and Articles 35, 73 and 24 of the Constitution

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, "Ann Gichimo v Kenya Ordinance Factories Corporation [2016] KEELRC 116 (KLR)", Case Analysis (2016). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/116/eng@2016-12-19

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