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ELRCDismissedNot stated in the excerpt· [2023] KEELRC 1627 (KLR)

Kinyanjui v Scania East Africa Limited (Employment and Labour Relations Cause E609 of 2020) [2023] KEELRC 1627 (KLR)

Employment and Labour Relations Court
15 June 2023
MNMATHEWS N. NDUMA
809 words in judgment
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The bottom line

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A Kenyan employment court ruled an employee could secretly record his own disciplinary hearing and use the recording as evidence.

What this practically means

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Executive summary

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In this interlocutory ruling, the Employment and Labour Relations Court at Nairobi (Mathews N. Nduma, Judge) considered the respondent's Notice of Motion dated November 20, 2022 seeking to exclude two exhibits produced by the claimant: 'AWK-2', an audio recording secretly made by the claimant of a disciplinary hearing held against him on July 29, 2020 and subsequent meetings, and 'EN-1', its transcript. The respondent argued that the evidence was obtained without the consent of the participants, violated their privacy rights, and should be excluded under Article 50(4) of the Constitution where its prejudicial effect outweighed its probative value, relying on S -vs- Ismail and Others (2004) ZAWCHC 39 and Shakunt Rajnikant Shah -vs- Bhupendra Motichand Shah t/a John Cumming & Company & Another [2021] eKLR. The claimant opposed, relying on the participant-monitoring distinction in S -vs- Ismail and on sections 78A, 106B and 106(4)(a) to (d) of the Evidence Act, and prayed for dismissal with costs. The court held that the claimant was a participant and the subject matter of the recorded proceedings; since an employer must accurately record disciplinary proceedings and had failed to do so, the employee was entitled to record the hearing himself to protect his rights. The evidence was therefore admissible. The application was dismissed with costs in the cause on June 15, 2023.

Key legal issues

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01

Whether secretly recorded evidence by a party to a disciplinary hearing is inadmissible as unlawfully obtained under Article 50(4) of the Constitution

Holding

The evidence was admissible; the claimant was a participant and subject matter of the recording, and could not be faulted for ensuring the proceedings affecting his rights were accurately recorded

Reasoning

The court accepted the participant/third-party distinction from S -vs- Ismail. Because the claimant was a participant and the subject of the disciplinary hearing, and the employer had not recorded the minutes, the employee was entitled to record the proceedings himself. Admitting the evidence would not render the trial unfair or be detrimental to the administration of justice, so Article 50(4) did not require exclusion.

p. 2

Legal principles established

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  • Where an employer fails to accurately record a disciplinary hearing, an employee may record the proceedings himself to protect his rights, and such participant recordings are admissible
  • Recordings made by a participant to the conversation (participant monitoring) are distinguishable from third-party monitoring and are admissible

Court orders

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  1. 1.The respondent's Notice of Motion dated November 20, 2022 is dismissed with costs in the cause
  2. 2.The impugned evidence (AWK-2 and EN-1) remains admissible in evidence in the case

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50(4)
  • Evidence ActSections 78A, 106B and 106(4)(a) to (d)

Cases cited (2)

  • S -vs- Ismail and Others
    (2004) ZAWCHC 39
  • Shakunt Rajnikant Shah -vs- Bhupendra Motichand Shah t/a John Cumming & Company & Another
    [2021] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction (not expressly stated in the ruling)

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, "Kinyanjui v Scania East Africa Limited (Employment and Labour Relations Cause E609 of 2020) [2023] KEELRC 1627 (KLR)", Case Analysis (2023). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1627/eng@2023-06-15

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