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ELRCDismissedApplication dated April 21, 2022 in ELRC Cause (heard simultaneously with Cause Number 1566 of 2016, Joel Mwikuyu Kitheka v Tamarind Management Limited)· [2023] KEELRC 212 (KLR)

Amunya v Tamarind Management Limited (Cause 1564 of 2016) [2023] KEELRC 212 (KLR)

Employment and Labour Relations Court
31 January 2023
1,967 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled employers don't need document authors to testify—the HR Manager can present company records, and late objections to evidence will fail.

What this practically means

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Executive summary

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This interlocutory application arose in an Employment and Labour Relations Cause heard simultaneously with Cause Number 1566 of 2016 (Joel Mwikuyu Kitheka v Tamarind Management Limited). The Claimants testified and closed their cases on 11th March 2022, but objected when the Respondent's Human Resource Manager, Maureen Namiroi, was called to produce the Respondent's bundle of documents, contending she was not their maker. By an application dated April 21, 2022, supported by the affidavit of their advocate Rita Wayua Mutie, the Claimants invoked section 35(1) of the Evidence Act and rule 25(3) of the E&LRC (Procedure) Rules 2016, urging that only the makers - including the Internal Auditor - could produce documents such as M-pesa sales audit reports, electronic journal prints and pictures of the Micros system, the latter said to require a certificate under section 106B(4) of the Evidence Act. The Respondent, through the affidavit of its advocate Nicholas Weru, explained that the original HR Manager, John Njeru, had left employment and his witness statement was substituted with Namiroi's; it relied on Article 159 of the Constitution, Section 20 of the E&LRC Act, and authorities holding that objections to documents must be raised at pre-trial. Rika J held there is no strict requirement that documents be produced by their authors in this Court; the HR Manager is the custodian of corporate employment records and competent to exhibit them, with weight to be tested on cross-examination. The Court also found the Claimants' objection, raised six years after the documents were filed and after they closed their cases, was inexcusable and fatal. The application was declined with costs in the cause.

Key legal issues

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01

Whether documents must be produced by their makers in E&LRC proceedings

Holding

No; the Court has wide discretion under Section 20 of the E&LRC Act, Article 159 of the Constitution, and Rules 21, 25(3) and 38 of the E&LRC (Procedure) Rules 2016 to admit documents without calling their authors.

Reasoning

Section 20 of the E&LRC Act requires the Court to act without undue regard to technicalities, reflecting Article 159. Rules 21, 25(3) and 38 vest wide discretion in admitting evidence. Section 35 of the Evidence Act permits production by persons other than makers. The HR Manager is the custodian of corporate employment records and may exhibit them.

p. 3
02

Whether the Human Resource Manager may produce employment records she did not author

Holding

Yes; she is the custodian of the corporate employment records and the appropriate officer to present them on behalf of the employer.

Reasoning

The documents are corporate employment records in the custody of the HR office, not individual documents. In the author's absence, the custodian is authorised to present them. The Claimants may cross-examine her; if she cannot vouchsafe their truth, only the Respondent's case is weakened.

p. 3
03

Effect of belated objection to production of documents

Holding

Objection must be raised at pre-trial; raising it after testifying and resting one's case is inexcusable delay that is fatal to the objection.

Reasoning

The documents were on record since 2016 and the Claimants objected 6 years later after closing their cases, having referred to some documents in their own evidence. The test is whether a timely objection would have allowed the defect to be cured; delay deprived the Respondent of that chance.

p. 4

Legal principles established

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  • There is no strict requirement in E&LRC proceedings that documents be produced by their authors; the Court's discretion under Section 20 of the E&LRC Act and Article 159 of the Constitution governs admission of documents.
  • Admission of documents as exhibits does not establish the truth of their contents; failure of the witness to vouchsafe truthfulness weakens the relying party's case.
  • Objections to production of documents must be raised at the pre-trial stage; belated objections after a party has testified and rested are fatal.

Court orders

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  1. 1.The Application dated April 21, 2022, filed by the claimants is declined.
  2. 2.Costs in the cause.

Authorities

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Legislation

  • Evidence ActSection 35(1)
  • Evidence ActSection 35(2)
  • Evidence ActSection 106B(4)
  • E&LRC (Procedure) Rules 2016Rule 25(3)
  • E&LRC (Procedure) Rules 2016Rule 21
  • E&LRC (Procedure) Rules 2016Rule 38
  • Constitution of KenyaArticle 159
  • E&LRC ActSection 20
  • E&LRC ActSection 3 (referred to in submissions as Section 4)
  • Employment Actnot specified (burden to justify termination)

Cases cited (4)

  • Samuel Kazungu Kambi v Nelly Kongo & 2 others
    [2017] e-KLR
  • Justus Kibaara Kibai v Mt. Kenya East Farmers Co-op Limited
    [2018] e-KLR
  • ASSL v ASSMB
    [2020] e-KLR
  • Mary Maina Nandeka [suing as the Legal Representative of the estate of the late George Nzuiko] v Monicah Mwenga Manthi & 3 others
    [2022] e-KLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the E&LRC Act and E&LRC (Procedure) Rules, 2016, anchored on Article 159 of the Constitution

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, "Amunya v Tamarind Management Limited (Cause 1564 of 2016) [2023] KEELRC 212 (KLR)", Case Analysis (2023). Application dated April 21, 2022 in ELRC Cause (heard simultaneously with Cause Number 1566 of 2016, Joel Mwikuyu Kitheka v Tamarind Management Limited). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/212/eng@2023-01-31

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