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ELRCDismissedNot stated in judgment (Notice of Motion dated 15th August, 2018)· [2018] KEELRC 126 (KLR)

Chris Oanda v Kenya Airways [2018] KEELRC 126 (KLR)

Employment and Labour Relations Court
7 December 2018
2,477 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 employees have no reasonable privacy expectation in work email accounts, so evidence from them is admissible.

What this practically means

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Executive summary

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By Notice of Motion dated 15th August 2018, the Claimant, Chris Oanda, sought striking out of the Respondent's Statement of Response (or paragraphs 100 to 111 thereof), paragraphs 2 to 19 of the witness statement of Peter Mungai, and expungement of pages 319 to 381 of the Respondent's bundle of documents, on the ground that the material was obtained by hacking his private Gmail account in violation of his right to privacy under Article 31(d) of the Constitution, and that such evidence should be excluded under Article 50(4). He also sought leave to file his reply to defence out of time and costs. The Respondent opposed, denying any hacking and contending she lawfully accessed the Claimant's official email account, her own property, to verify information he had shared with his personal Gmail account; she relied on Anarita Karimi Njeru, D.T. Dobie, and South African privacy jurisprudence. The court framed two issues: whether the impugned documents were illegally obtained and what orders should follow, and whether leave to file the reply out of time should issue. It found the Claimant had not proved hacking on a balance of probability, and that the Respondent lawfully retrieved the documents from the official account, following Angela Wokabi Muoki v Tribe Hotel and Bar Bulescu v Romania on the limited privacy expectation in work email. The application was dismissed, save that the Claimant was granted 7 days to file and serve his reply to the defence, with costs of the application to the Respondent.

Key legal issues

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01

Whether the impugned documents were illegally obtained in breach of the Claimant's right to privacy under Article 31(d)

Holding

The Claimant did not prove hacking of his private Gmail account; the Respondent lawfully accessed his official work email account and the documents were lawfully obtained.

Reasoning

The court evaluated the rival contentions and found the Claimant had not discharged the burden on a balance of probability that his private Gmail account was hacked. It accepted the Respondent's account that documents had been shared from the official email to the personal Gmail account, and that the employer was entitled to access the official account. Following Angela Wokabi Muoki v Tribe Hotel and Bar Bulescu v Romania, an employee cannot claim privacy over work email where monitoring is limited and proportionate.

p. 4
02

Whether leave should be granted to file reply to defence out of time

Holding

Leave granted; no prejudice pointed out by the Respondent.

Reasoning

Neither party addressed submissions on this prayer. The court held that since no prejudice was demonstrated by the Respondent, the unopposed prayer would be granted as prayed.

p. 4

Legal principles established

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  • An employee cannot claim privacy over an employer's work email account; the employer may access it where circumstances justify, provided the monitoring is proportionate
  • Evidence obtained in violation of a Bill of Rights right is excludable only if admission would render the trial unfair or be detrimental to the administration of justice

Court orders

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  1. 1.The Application dated 15th August, 2018 is dismissed save that the Claimant is granted 7 days to file and serve his Reply to the Defence
  2. 2.Costs of the application to the respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 31(d)
  • Constitution of Kenya, 2010Article 50(4)
  • Constitution of Kenya, 2010Article 54(4) (as cited in the application)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 35
  • Employment and Labour Relations ActSection 12
  • Employment and Labour Relations Act, 2011Section 20(1)
  • Employment and Labour Relations Court (Procedure) Rules, 2016Section 17 (as cited)

Cases cited (9)

  • Anarita Karimi Njeru Versus Republic (No. 1)
    (1979) KLR 154
  • D.T. Dobie & Company (Kenya) Limited Versus Joseph Mbaria Muchina & Another
    (1980) eKLR; Civil Appeal No. 37 of 1978
  • Okiya Omtata & 2 Others Versus AG
  • Baseline Architects Ltd & 2 others Versus National Hospital Insurance Fund Board Management
    (2008) eKLR
  • Harold Berstein and Others versus Von Wielligh NO and Others
    (1996) (2) SA 75
  • Mistry Vs Interim National Medical and Dental Council of South Africa
    (1998) (4) SA 1127 (CC)
  • Angela Wokabi Muoki Versus Tribe Hotel Limited
    (2016) eKLR; Cause No. 1712 of 2014
  • Peter Apollo Ochieng Versus Instarect Limited
    (2017) eKLR
  • Bar Bulescu versus Romania
    Application 61469 of 2008
Jurisdiction invoked
Section 12 of the Employment and Labour Relations Act and Section 17 of the Employment and Labour Relations Court (Procedure) Rules, 2016

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, "Chris Oanda v Kenya Airways [2018] KEELRC 126 (KLR)", Case Analysis (2018). Not stated in judgment (Notice of Motion dated 15th August, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/126/eng@2018-12-07

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