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ELRCAllowedNot stated in judgment (ELRC Notice of Motion dated 6th January 2020)· [2020] KEELRC 451 (KLR)

Tourism Promotion Services (Management) Limited v Charles Otieno Ogada [2020] KEELRC 451 (KLR)

Employment and Labour Relations Court
18 September 2020
2,157 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 confirmed that a company can compel Safaricom to release its own M-Pesa records as evidence, even over an employee's privacy objections.

What this practically means

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Executive summary

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The Claimant, Tourism Promotion Services (Management) Limited, filed a Notice of Motion dated 6th January 2020 seeking an order directing Safaricom Public Limited Company to produce certified M-Pesa statements for Account Holder TPS Head Office for the period 1st January 2011 to 31st December 2015, with costs in the cause. The Claimant alleged that the Respondent, its former Group Financial Controller who retired voluntarily on 31st December 2015, acknowledged in writing on 16th December 2015 an outstanding M-Pesa advance debt of Kshs.18,874,924 (later pleaded as Kshs.10,574,363.27 in the Further Affidavit) and that the statements were needed to support its claim. The Respondent opposed the application through grounds of opposition and a replying affidavit, arguing the order would breach his right to privacy under Article 31 of the Constitution, that the Claimant had not shown sufficient cause, that the application was brought after unexplained delay and in bad faith, and that after the oral amendment the application was vague as to the account sought. The application was amended by consent in open court on 10th March 2020 by deleting the mobile number reference. Maureen Onyango J found the consent amendment valid and the Respondent estopped from contesting it. Applying the discovery principles in Laiser Communications Ltd v Safaricom Ltd and KCB v Kenya Pipeline, the court held that the Applicant, as owner of the account, was entitled to the statements to present its best evidence and aid the just determination of the dispute. The application succeeded; Safaricom was ordered to produce the statements and costs were made costs in the cause.

Key legal issues

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01

Validity of the oral amendment to the application made by consent

Holding

The consent amendment deleting the mobile number reference is valid and the Respondent is estopped from denying it

Reasoning

The parties recorded consent orders before Ongaya J. amending the application by deleting the reference to the mobile number. No application was made to set aside the consent orders, so the court found the amendment valid and held the Respondent estopped from denying its validity or contesting its effect.

p. 3
02

Entitlement to an order for production of M-Pesa statements (third-party discovery)

Holding

The Applicant, as owner of the account, is entitled to the certified M-Pesa statements as discovery to present its best evidence and aid the just determination of the dispute

Reasoning

The court adopted the principles in Laiser Communications Ltd v Safaricom Ltd and KCB v Kenya Pipeline on the purpose of discovery as captured in Halsbury's Laws of England. Since the Applicant owns the Account Code and the records would enable it to present its best evidence and assist the court, the Respondent's objections (vagueness, privacy, delay, bad faith) failed and the application succeeded.

p. 3

Legal principles established

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  • Pre-trial discovery is central to litigation and should be limited solely to matters in contention; its function is to provide parties with relevant documentary material before trial to appraise the strengths and weaknesses of their cases, eliminate surprise and reduce the cost of litigation.

Court orders

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  1. 1.Safaricom Public Company Limited to produce records of M-Pesa statements for Account Holder TPS Head Office, Account Code *****, for the period between 1st January 2011 to 31st December 2015
  2. 2.Costs of the application shall be in the cause
Jurisdiction invoked
Section 20(1) of the Employment and Labour Relations Court Act (general powers of the Court), relied on by the Applicant

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, "Tourism Promotion Services (Management) Limited v Charles Otieno Ogada [2020] KEELRC 451 (KLR)", Case Analysis (2020). Not stated in judgment (ELRC Notice of Motion dated 6th January 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/451/eng@2020-09-18

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