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ELRCAllowedNot stated in the judgment· [2021] KEELRC 1779 (KLR)

Mahmood Abdulali Mohamed Jaffer Kanji v Gulf Badr Group (Kenya) Limited [2021] KEELRC 1779 (KLR)

Employment and Labour Relations Court
29 April 2021
LNLINNET NDOLO
1,350 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court ruled that Skype chat printouts are inadmissible evidence unless strict statutory requirements, including a certificate, are met.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion by the Respondent in an employment claim for unfair termination and non-payment of terminal dues, seeking expungement from the record of the Claimant's document described as 'copies of Claimant's skype conversation with the Respondent's HQ Representative'. The Respondent argued that the document was a computer-generated record whose production did not comply with Section 106B of the Evidence Act, which requires satisfaction of statutory conditions and a certificate under subsection (4), and relied on authorities including Republic v Barisa Wayu Matuguda and William Odhiambo v IEBC & 2 others. The Claimant opposed through Grounds of Opposition, contending that Section 106I of the Evidence Act creates a rebuttable presumption that an electronic message left the originator's address and was received by the addressee in the same form, and that no evidence of tampering had been adduced. Ndolo J held that Section 106I applies only to electronic mail from one email address to another and does not cover a print-out of skype communication; such a print-out is an electronic record admissible only under Section 106B. The Claimant having failed to comply with Section 106B, the skype document was expunged from the record. Costs of the Motion were ordered to be in the cause. The underlying claim remains to be heard without the expunged document.

Key legal issues

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01

Scope of Section 106I presumption as to electronic messages

Holding

Section 106I applies only to electronic mail from one electronic mail address to another; a skype print-out does not qualify

Reasoning

The court read Section 106I as confined to email communication originating from one electronic mail address to another. A print-out of skype communication does not fit that definition of an electronic message, so the presumption of integrity under that section is unavailable and the presumption-based Grounds of Opposition fail.

p. 3
02

Admissibility of electronic records under Section 106B

Holding

The skype print-out is an electronic record admissible only if the Section 106B conditions, including a certificate under subsection (4), are met; the Claimant did not comply, so the document is expunged

Reasoning

Section 106B deems computer output admissible only where the statutory conditions are satisfied and a certificate signed by a person in a responsible position is tendered. The Claimant took no steps to comply with Section 106B. The document was therefore inadmissible and was expunged from the record.

p. 3

Legal principles established

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  • A print-out of skype communication is an electronic record admissible only under the conditions in Section 106B of the Evidence Act, not an electronic message attracting the presumption under Section 106I
  • Electronic evidence must satisfy Section 106B, including a certificate under subsection (4), to be admissible

Court orders

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  1. 1.The document identified as 'Claimant's Skype conversation with Respondent's HQ Representative', item number 6 in the Claimant's list of documents dated 11th November 2019, is expunged from the record
  2. 2.Costs of the Motion to be in the cause

Authorities

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Legislation

  • Evidence Act (Cap 80)Section 106B
  • Evidence Act (Cap 80)Section 106I
  • Evidence Act (Cap 80)Section 106A

Cases cited (2)

  • Republic v Barisa Wayu Matuguda
    [2011] eKLR
  • William Odhiambo v IEBC & 2 others
    [2013] eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction of the Employment and Labour Relations Court

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, "Mahmood Abdulali Mohamed Jaffer Kanji v Gulf Badr Group (Kenya) Limited [2021] KEELRC 1779 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1779/eng@2021-04-29

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