Nyangiry O’kambaga Bwonditi v Ecobank (K) Limited [2016] KEELRC 1526 (KLR)
The bottom line
#A Kenyan court dismissed a dismissed banker's bid to force Ecobank to hand over documents because he couldn't prove they existed or mattered.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant met the threshold for compelled production of the 3rd February 2014 email
The claimant did not meet the threshold; the Court declined the orders sought
The respondent submitted, citing Oluoch v. Chargu, that discovery of particular documents requires sufficient evidence of their existence, relevance to matters in issue, and that they are in the possession, custody or power of the other party. The claimant relied only on a confidential source, which was not evidence of the email's existence, and would require the respondent to prove a negative. The Court accepted that the threshold was not met.
Relevance and necessity of the documents sought to be produced
The documents were not critical to establishing that the respondent had no valid reason to terminate the claimant's services
The Court perused the notice to produce and held the documents were not critical to the claimant's case. Since the burden of proving that the reasons for termination were justifiable rests on the respondent, it is the respondent, not the claimant, who should produce such documents if they are key. The respondent also argued the documents were highly confidential bank documents whose production could harm its competitive strategy.
Burden of proof in unfair termination claims
The employer bears the burden of proving valid and justifiable reasons for termination
The Court reiterated that in employment claims the onus is cast on the employer to prove the validity of reasons for terminating services; failure to discharge that burden leads to a finding of unfair termination. The respondent was expected to produce evidence supporting the allegations in its defence, failing which the claimant's allegations would stand vindicated.
Legal principles established
#- In employment claims the onus is cast on the employer to prove the validity of the reasons for terminating an employee's services
- To obtain access to information under article 35(1)(b) an applicant must state the right to be exercised or protected, the information required, and how the information would assist in exercising or protecting that right
- An order for discovery of particular documents requires evidence that the documents exist, relate to matters in issue, and are in the possession, custody or power of the other party
Court orders
#- 1.The Court declined to make the orders sought in the motion dated 27th May, 2015
- 2.It is so ordered
- Jurisdiction invoked
- Employment and labour relations dispute under the Employment Act, 2007 (court seized of a memorandum of claim); the application invoked article 35(1)(b) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyangiry O’kambaga Bwonditi v Ecobank (K) Limited [2016] KEELRC 1526 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1526/eng@2016-03-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.