Amunya v Tamarind Management Limited (Cause 1564 of 2016) [2023] KEELRC 212 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether documents must be produced by their makers in E&LRC proceedings
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.
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.
Whether the Human Resource Manager may produce employment records she did not author
Yes; she is the custodian of the corporate employment records and the appropriate officer to present them on behalf of the employer.
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.
Effect of belated objection to production of documents
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.
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.
Legal principles established
#- 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
#- 1.The Application dated April 21, 2022, filed by the claimants is declined.
- 2.Costs in the cause.
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.