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ELRCPartially AllowedCause No 426 of 2019· [2021] KEELRC 1047 (KLR)

Ngongo & 2 others v Roche Kenya Limited (Cause 426, 427 & 428 of 2019 (Consolidated)) [2021] KEELRC 1047 (KLR)

Employment and Labour Relations Court
2 September 2021
OMOnesmus N. Makau
3,098 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court allowed former Roche employees to access company employee lists but refused wider document discovery, citing relevance and privacy.

What this practically means

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Executive summary

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The Applicants, former employees of the Respondent declared redundant on 31.5.2018, filed three separate applications seeking discovery orders under section 22(a) of the Civil Procedure Act and Article 35(1)(b) of the Constitution. They sought the Respondent's CR12 records, organograms before and after the redundancy, audited financial reports for 2015-2018, particulars of its employees and their employment contracts, contending that the documents were relevant to their claim for unlawful, discriminatory termination effected at the expense of expatriate employees. The Respondent opposed, asserting that none of the documents was relevant, the redundancy was based on operational rather than financial considerations, and that disclosure of third-party employees' confidential particulars would violate their privacy rights. Relying on the test in ABN Amro Bank N.V v Kenya Pipeline Company Limited, the court found the applications were not supported by affidavits explaining the necessity of the documents. It declined to order production of the CR12 (obtainable from the Registrar of Companies and irrelevant), the organograms (non-existent or already produced), and the audited accounts (irrelevant given the operational basis of the redundancy). It refused production of non-party employees' contracts on privacy grounds but ordered production of the lists of employees, finding them necessary to establish whether there was discrimination. The applications were dismissed save for prayer (f)(i)-(ii), with costs in the cause. The ruling was delivered online under Covid-19 court directives.

Key legal issues

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01

Test for discovery of documents

Holding

Applicant must identify the information/documents and show they are relevant and necessary for determination of the suit

Reasoning

The court adopted the constitutional test in ABN Amro Bank N.V v Kenya Pipeline Company Limited: the applicant must identify the information or documents and the person holding them, and demonstrate that they are required for the exercise or protection of a right or fundamental freedom, being relevant and necessary to the determination of the suit. The Applicants' applications were also not supported by affidavits explaining necessity.

p. 4
02

Discovery of confidential third-party employee information

Holding

Contracts of non-party employees may not be produced as it violates their right to privacy, but lists of employees may be ordered as relevant to discrimination claim

Reasoning

The court balanced the Applicants' right of access to information under Article 35(1)(b) against the privacy rights under Article 31(a) of non-party employees. It held discovery cannot be granted where it violates another's constitutional right, refusing the employment contracts but allowing the lists of employees as necessary to establishing whether there was discrimination and exclusively in the Respondent's custody.

p. 4

Legal principles established

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  • Discovery is limited to matters in contention and guided by the relevance of documents to the pleadings
  • Discovery cannot be ordered where it would violate another person's constitutional right to privacy

Court orders

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  1. 1.The Respondent to produce the lists of employees sought in prayer (f)(i)-(ii) of the applications
  2. 2.The remainder of the applications dismissed
  3. 3.Costs in the cause

Authorities

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Legislation

  • Constitution of KenyaArticle 35(1)(b)
  • Constitution of KenyaArticle 31
  • Constitution of KenyaArticle 31(a)
  • Constitution of KenyaArticle 24(1)
  • Civil Procedure ActSection 22(a)
  • Employment and Labour Relations Court (Procedure) Rules 2016Rule 25(7); Rule 28(3)

Cases cited (11)

  • Concord Insurance Co. Limited v NIC Bank Limited
    [2013] eKLR
  • Rafiki Microfinance Bank Ltd v Zenith Pharmaceuticals Ltd
    [2016] eKLR
  • Oracle Productions Limited v Decapture Limited & 3 others
    [2014] eKLR
  • Alfred Crompton Amusement Machines Limited v Commissioner of Customs and Excise (No.2)
    1973 2 All ER 1169
  • Vincent Muema Mutuku v Rift Valley Railways (Kenya) Limited
    [2015] eKLR
  • Laiser Communications Limited & 5 Others v Safaricom Limited
    [2019] eKLR
  • Kenya Airways Limited v Aviation & Allied Workers Union Kenya & 3 others
    [2014] eKLR
  • Juma Onyango William v Kipepeo Group of Hotels
    [2020] eKLR
  • JLN & 2 others v Director of Children Services & 4 others
    [2014] eKLR
  • W v Edgell
    1990 1 All ER 835
  • ABN Amro Bank N.V v Kenya Pipeline Company Limited
    [2014] eKLR
Jurisdiction invoked
Section 22(a) of the Civil Procedure Act and Article 35(1)(b) of the Constitution; Rule 25(7) 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, "Ngongo & 2 others v Roche Kenya Limited (Cause 426, 427 & 428 of 2019 (Consolidated)) [2021] KEELRC 1047 (KLR)", Case Analysis (2021). Cause No 426 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1047/eng@2021-09-02

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