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ELRCAllowedNot stated in the judgment· [2023] KEELRC 2635 (KLR)
Otieno v RHS Freight Services (K) Limited (Cause 490 of 2019) [2023] KEELRC 2635 (KLR)
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·~3 min to read original · ~4 min briefThe bottom line
#A Kenyan employment court struck out workplace emails an employee forwarded to herself, ruling improperly obtained documents cannot be used in court.
What this practically means
#Executive summary
#The Respondent filed a Notice of Motion dated 29th May 2023 seeking to expunge from the record the Claimant's Document No. 13, comprising emails dated 17th September 2015 to 17th March 2019, on the ground that they were irregularly and illegally obtained from a manager's private emails and breached its right to privacy. The Claimant opposed via a replying affidavit, explaining that in March 2019 a salesman, Swapnil, logged into her desktop and she found his email account open with an email titled 'Termination of Stafi & Fee Structure-Beatrice Otieno'; she forwarded the emails to her personal address. The Respondent relied on the persuasive authority of Faccenda Chicken Limited v Fowler on the implied duty of good faith and non-disclosure of confidential information. The Court took judicial notice that employees inevitably access confidential or restricted information in the course of employment without liberty to use or disclose it, and held that the employee's right to information must stop where the employer's right to privacy and fair play begin. Citing its earlier decision in Susan Wariara Kariuki v Diakonie Katastrophenhilfe, which endorsed Lenaola J's holding in Okiya Omtatah Okoiti that courts will not rely on improperly obtained documents, the Court found that the Claimant had no reason to resort to unorthodox means, since pretrial discovery and interrogatories were available to her. The Court held the emails were improperly obtained and ordered them expunged from the record, with costs of the application in the cause.
Key legal issues
#01
Whether the emails were improperly obtained by the Claimant
Holding
The Court found the emails were improperly obtained and ordered their expungement from the record.
Reasoning
The Claimant admitted forwarding the employer's emails to her personal address after encountering them on her desktop. The Court took judicial notice that employees access confidential and restricted information in employment relationships and cannot freely use it. As proper channels (discovery, interrogatories) exist, self-help acquisition justified expungement.
p. 2
Legal principles established
#- An employee's right of access to information must yield where information is confidential to the employer; a party needing documents has recourse through pretrial discovery and interrogatories, not self-help.
- A court of law will not rely on documents that are improperly obtained.
Court orders
#- 1.The documents identified as No. 13, being emails dated 17th September 2015 to 17th March 2019, are expunged from the record
- 2.Costs of the application to be in the cause
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over the suit; Notice of Motion dated 29th May 2023 seeking expungement of documents
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Otieno v RHS Freight Services (K) Limited (Cause 490 of 2019) [2023] KEELRC 2635 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2635/eng@2023-10-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.