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ELRCPartially AllowedCause No 1248 of 2014· [2019] KEELRC 1481 (KLR)

Martin Kabanga Gathawa v Associated Battery Manufacturers (E.A) Ltd [2019] KEELRC 1481 (KLR)

Employment and Labour Relations Court
31 May 2019
1,276 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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By a notice of motion under Order 2 Rule 15(1)(b)-(d) and Order 51 Rule 1 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act and Articles 31 and 50(1) and (4) of the Constitution, the applicant (the employer) sought the expungement and striking out of the witness statement of Bernard Njoroge, its former Human Resource and Administration Manager, on four grounds: breach of advocate-client confidentiality under sections 134 and 137 of the Evidence Act, violation of the right to a fair hearing under Article 50, failure to disclose material facts, and filing out of time without leave contrary to rule 14(8) and (9) of the ELRC (Procedure) Rules, 2016. The claimant opposed through the replying affidavit of Kibe Mungai Advocate, contending no privileged information was disclosed and that the Court could excuse late filing. The Court found that Njoroge, as a senior manager privy to the applicant's correspondence with its advocates, disclosed legal advice given in a criminal complaint against the claimant, so that advocate-client confidentiality would be seriously prejudiced if the statement remained on record. However, the Court rejected the objections that the statement lacked material facts (a witness statement not being a pleading) and refused to expunge it solely for late filing, excusing the procedural defect under Article 159 in furtherance of substantive justice. The application was allowed only in part: the witness statement was expunged on confidentiality grounds, costs were ordered to be in the cause, and the parties were directed to take prompt steps towards the expeditious hearing of the main suit.

Key legal issues

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01

Whether disclosure of advocate-client communications by a former employee witness justified expungement

Holding

Yes. The witness statement disclosed legal advice given by the applicant's advocates, breaching section 137 of the Evidence Act and the contractual confidentiality clause, and would seriously prejudice advocate-client confidentiality.

Reasoning

The Court found no dispute that Bernard Njoroge served as Human Resource and Administration Manager in the applicant's top management and was therefore privy to correspondence between the applicant and its advocates. The statement disclosed legal advice given in a criminal complaint against the claimant. The Evidence Act provisions invoked applied, and the contractual confidentiality clause removed any doubt about the duty not to disclose. Expungement followed.

p. 2
02

Whether the statement should be struck out for lack of material facts or cause of action

Holding

No. A witness statement is not a pleading, so such an objection is misconceived.

Reasoning

The Court accepted the claimant's submission that the attack on the witness statement as not disclosing material facts treated it as if it were a defence or pleading. That approach was misconceived, and the Court declined to strike out the statement on that ground, though the statement was ultimately expunged on confidentiality grounds.

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Whether late filing without leave under rule 14(8) and (9) warranted expungement

Holding

No. Although filed out of time without leave, the Court excused the procedural defect in the interest of substantive justice under Article 159 of the Constitution.

Reasoning

The Court accepted there was no dispute that the statement was filed belatedly outside the stipulated time, which operated as an impetus to allowing the application. However, guided by Article 159 and substantive justice, and noting the claimant had time to respond, the Court excused the procedural defect rather than expunging the statement on that basis.

p. 2

Legal principles established

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  • Advocate-client confidentiality applies independently of any contractual confidentiality clause and justifies expungement of evidence disclosing privileged legal advice
  • A witness statement is not a pleading and cannot be attacked for failing to disclose a cause of action or triable issues
  • Procedural defects such as late filing of a witness statement may be excused in furtherance of substantive justice under Article 159 of the Constitution

Court orders

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  1. 1.The witness statement of Benard Njoroge, a former employee of the applicant dated 30.07.2018, is expunged from the Court record
  2. 2.The costs of the application to be in the cause
  3. 3.The parties to take prompt and further steps towards the expeditious hearing and determination of the main suit

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 Rule 15(1)(b), (c) and (d); Order 51 Rule 1
  • Civil Procedure ActSections 1A, 1B and 3A
  • Constitution of Kenya, 2010Articles 31, 50(1) and (4); 159
  • Evidence Act (Cap 80)Sections 134 and 137
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 14(8) and (9)
Jurisdiction invoked
Inherent and case-management powers under Articles 159 and 50(1) and (4) of the Constitution, Sections 1A, 1B and 3A of the Civil Procedure Act and Order 2 Rule 15(1)(b), (c), (d) and Order 51 Rule 1 of the Civil Procedure Rules, read with the Employment and Labour Relations Court (Procedure) Rules, 2016 (rule 14(8) and (9))

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Martin Kabanga Gathawa v Associated Battery Manufacturers (E.A) Ltd [2019] KEELRC 1481 (KLR)", Case Analysis (2019). Cause No 1248 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1481/eng@2019-05-31

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