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ELRCOtherCause No E257 of 2021· [2023] KEELRC 2190 (KLR)

Nzomo v Kenya Airport Parking Services Ltd & another (Cause E257 of 2021) [2023] KEELRC 2190 (KLR)

Employment and Labour Relations Court
22 September 2023
AMAnna Ngibuini Mwaure
1,367 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court admitted audio recordings as evidence because the claimant provided the required certificate under section 106B of the Evidence Act.

What this practically means

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Executive summary

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This interlocutory ruling by Anna Ngibuini Mwaure, Judge, delivered virtually in Nairobi on 22 September 2023, resolves an objection raised by the respondent in the course of the hearing of the main suit concerning the admissibility of audio recordings as electronic evidence. The court examined sections 78A(1) and 78A(2) of the Evidence Act, which admit electronic and digital evidence and bar rejection solely because the evidence is not in original form, read together with sections 106A and 106B, which deem computer output admissible once specified conditions are met and require a certificate identifying the electronic record, describing its production, giving particulars of the device, and signed by a person in a responsible position. Applying Jackline Vusevwa Selenge v Olivier Guiguemde [2021] eKLR, which itself relied on Republic v Berisa Wayu Matuguda, Criminal Case No. 6 of 2008, the court found that the claimant's Certificate Confirming the Authenticity, Accuracy and Manner of Production of Audio Recordings and Computer Printouts dated June 23, 2022 satisfied section 106B(4): it identified the records, described their production, gave particulars of the device (CD), and was signed by the claimant as the person responsible for the computer used to transfer the recordings to a SanDisk Cruzer Blade. The court further held that the respondent's failure to oppose production during pre-trials made the mid-hearing objection an afterthought. The audio recordings were admitted, and the case was set to proceed on 9 November 2023. No costs order was made.

Key legal issues

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01

Admissibility of audio recordings as electronic evidence under sections 78A and 106B of the Evidence Act

Holding

The audio recordings were admissible because the claimant's certificate dated June 23, 2022 met the requirements of section 106B(4)

Reasoning

The court read section 78A together with sections 106A and 106B of the Evidence Act. Applying the precedent in Jackline Vusevwa Selenge v Olivier Guiguemde, it found the claimant's certificate identified the electronic records, described how they were produced, gave particulars of the device (CD), and was signed by the claimant as the person responsible for managing the computer used to transfer the recordings to a SanDisk Cruzer Blade. The requirements of section 106B(4) were therefore satisfied and the recordings were admitted.

p. 3
02

Timing and good faith of the respondent's objection

Holding

The respondent's mid-hearing objection to the recordings was an afterthought given the absence of opposition during pre-trials

Reasoning

The respondent raised the question of admissibility only when the case was in the middle of the hearing, despite having had the opportunity to oppose production during pre-trial stages. The court treated this late opposition as an afterthought and declined to reject the audio recordings on that basis.

p. 3

Legal principles established

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  • Electronic records satisfying the conditions in section 106B(2) of the Evidence Act, supported by a proper certificate, are admissible without further proof or production of the original
  • A certificate identifying the electronic record, describing its manner of production, giving particulars of the device, and signed by a person in a responsible position suffices for admissibility under section 106B(4)

Court orders

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  1. 1.The audio recordings are admitted as evidence in the court
  2. 2.The case to proceed on 9/11/2023

Authorities

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Legislation

  • Evidence ActSection 78A(1)
  • Evidence ActSection 78A(2)
  • Evidence ActSection 106A
  • Evidence ActSection 106B(1)
  • Evidence ActSection 106B(2)
  • Evidence ActSection 106B(4)
  • Evidence ActSection 106B(5) (certificate provisions)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (2)

  • Jackline Vusevwa Selenge v Olivier Guiguemde
    [2021] eKLR
  • Republic vs Berisa Wayu Matuguda
    Criminal Case No.6 of 2008
Jurisdiction invoked
Original jurisdiction of the court hearing the main suit; no specific provision invoked for jurisdiction

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, "Nzomo v Kenya Airport Parking Services Ltd & another (Cause E257 of 2021) [2023] KEELRC 2190 (KLR)", Case Analysis (2023). Cause No E257 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2190/eng@2023-09-22

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