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ELRCAllowedApplication dated 20th January 2016 ( Claim stated in Memorandum of Claim; full cause number not shown in extract)· [2016] KEELRC 1536 (KLR)

Susan Wariara Kariuki v Diakonie Katastrophenhilfe [2016] KEELRC 1536 (KLR)

Employment and Labour Relations Court
18 March 2016
LNLINNET NDOLO
666 words in judgment
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The bottom line

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A Kenyan employment court removed a privileged legal letter from an employee's case, ruling documents obtained improperly will not be used.

What this practically means

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Executive summary

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The Respondent, through Wangalwa Oundo Advocate, applied by notice of motion dated 20th January 2016 to expunge a letter dated 29th May 2013 exhibited at page 38 of the Claimant Susan Wariara Kariuki's Memorandum of Claim. The Respondent argued the letter contained legal advice and was privileged advocate-client communication, and that the manner in which the unsigned letter came into the Claimant's possession suggested unethical or criminal conduct. The Claimant countered that she legitimately encountered the letter in the regular course of her employment as the Respondent's Administrative and Logistics Officer, that it was relevant to the just determination of her claim, and that the Respondent had waived privilege by not objecting earlier. The Court framed a single issue: whether the letter was properly on record. Relying on Section 134 of the Evidence Act and existing Employment and Labour Relations Court jurisprudence (SBI International Holdings AG (Kenya) v Amos Hadar), the Court held the communication privileged and that an employee may not exhibit an employer's restricted information without authorisation or a court order. Finding no credible explanation for how a letter neither addressed nor copied to the Claimant reached her, the Court concluded she used unethical and unlawful means to access it, noting that the Constitution provides legal means of accessing documents and that courts will not rely on improperly obtained documents (citing Lenaola J in Okiya Omtatah Okoiti). The letter was expunged and the Claimant ordered to bear the costs of the application. Judgment delivered at Nairobi on 18th March 2016 by Linnet Ndolo, Judge.

Key legal issues

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Whether a privileged advocate-client letter improperly obtained by a claimant may remain on record

Holding

The letter was improperly obtained and was expunged from the record

Reasoning

The letter contained legal advice from the Respondent's Advocate and was privileged under Section 134 of the Evidence Act. The Claimant offered no credible explanation of how a letter neither addressed nor copied to her came into her possession, leading the Court to conclude she used unethical and unlawful means to access it. The Court held that parties with constitutional access to documents through legal means need not resort to improper methods, and courts will not rely on improperly obtained documents.

p. 2

Legal principles established

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  • Advocate-client communications are privileged and can only be produced in court under exceptional circumstances
  • An employee may not exhibit restricted information belonging to their employer without authorisation of the employer or an order by the Court
  • A court of law will not rely on documents that are improperly obtained

Court orders

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  1. 1.Letter dated 29th May 2013 exhibited at page 38 of the Claimant's Memorandum of Claim expunged from the record
  2. 2.Costs of the application borne by the Claimant

Authorities

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Legislation

  • Evidence ActSection 134

Cases cited (2)

  • SBI International Holdings AG (Kenya) v Amos Hadar
    [2015] eKLR
  • Okiya Omtatah Okoiti & 2 Others v Attorney General & 3 Others
    [2014] eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction of the Employment and Labour Relations Court (provisions not cited in the extract)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Susan Wariara Kariuki v Diakonie Katastrophenhilfe [2016] KEELRC 1536 (KLR)", Case Analysis (2016). Application dated 20th January 2016 ( Claim stated in Memorandum of Claim; full cause number not shown in extract). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1536/eng@2016-03-18

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