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ELRCAllowedApplication dated 16th July, 2021 (in the main suit)· [2021] KEELRC 1062 (KLR)

Jackline Vusevwa Selenge v Olivier Guiguemde [2021] KEELRC 1062 (KLR)

Employment and Labour Relations Court
4 August 2021
SRStella Rutto
1,981 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court allowed an employer to use an audio recording as evidence because it was disclosed early and properly certified.

What this practically means

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Executive summary

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This was an interlocutory application dated 16th July 2021 by the Respondent in the main suit (the Applicant before the court) seeking leave to adduce electronic evidence in the form of a CD containing an audio recording. The application was certified urgent and heard inter partes on 3rd August 2021. The Applicant, through Mr. Omariba, explained that the audio recording existed at the time of filing his list of documents dated 5th July 2021 (where it appeared as item 7) but could not be uploaded on the Judiciary e-filing platform due to technological limitations. His witness Moses Alango had also disclosed in his witness statement that he made the recording. The Claimant, appearing in person, opposed the application, contending the evidence was late and an afterthought. Justice Stella Rutto first addressed timing, finding the recording had been disclosed at the outset and that e-filing limitations made the delay plausible. On admissibility, the court examined sections 78A, 106A and 106B of the Evidence Act (Cap 80), setting out the conditions in section 106B(2) and the certificate requirements in section 106B(4). The court found that Alango's certificate of authenticity dated 8th July 2021 identified the record, described its production, gave particulars of the devices (a One Plus 7 pro phone and a computer), and was signed by the person responsible for the device. Applying Republic vs Barisa Wayu Matuguda [2011] eKLR, the court held the CD met the statutory threshold and allowed the application as prayed, with costs in the cause.

Key legal issues

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01

Timing of the application

Holding

The application was not an afterthought as the existence of the recording had been disclosed in the list of documents and a witness statement

Reasoning

The Applicant's list of documents dated 5th July 2021 identified an audio recording as item 7, filed together with the response to the Memorandum of Claim. A witness, Moses Alango, also indicated in his witness statement that he made the recording. Further, the e-filing platform's technological limitations made uploading an audio recording difficult, so delay was plausible and excusable.

p. 1
02

Admissibility of electronic evidence

Holding

The CD met the conditions in section 106B(2) read with 106B(1) and the certificate requirements of section 106B(4) of the Evidence Act, hence admissible

Reasoning

The court applied sections 78A and 106B of the Evidence Act. The certificate of authenticity dated 8th July 2021 identified the record, described its production, gave particulars of the devices used, and was signed by Moses Alango, the person responsible for managing the computer used to reproduce the recording. The conditions in 106B(2) on proper operation and ordinary course of use were also met per the Barisa Wayu Matuguda threshold.

p. 3

Legal principles established

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  • Electronic evidence is admissible where the conditions in section 106B(2) read with 106B(1) of the Evidence Act are satisfied, and it must be accompanied by a certificate under section 106B(4) signed by a person in a responsible position in relation to the device

Court orders

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  1. 1.The Application dated 16th July, 2021 is allowed as prayed, granting leave to adduce the electronic evidence in the form of a CD
  2. 2.Costs shall be in the cause

Authorities

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Legislation

  • Evidence Act (Cap 80)section 78A(1)
  • Evidence Act (Cap 80)section 78A(2)
  • Evidence Act (Cap 80)section 106A
  • Evidence Act (Cap 80)section 106B(1)
  • Evidence Act (Cap 80)section 106B(2)
  • Evidence Act (Cap 80)section 106B(4)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Act (Chapter 21)Section 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (1)

  • Republic vs Barisa Wayu Matuguda
    [2011] eKLR
Jurisdiction invoked
Original employment jurisdiction of the Employment and Labour Relations Court; application under certificate of urgency for leave to adduce electronic evidence under the Evidence Act (Cap 80)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Jackline Vusevwa Selenge v Olivier Guiguemde [2021] KEELRC 1062 (KLR)", Case Analysis (2021). Application dated 16th July, 2021 (in the main suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1062/eng@2021-08-04

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