Kenya Society for the Protection and Care of Animals v Mwalimu (Employment and Labour Relations Appeal E216 of 2022) [2023] KEELRC 3134 (KLR)
The bottom line
#A Kenyan employment court ruled that disciplinary documents count as employer records producible by a custodian, so dismissed employees can't force original authors to testify.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the documents in question were personalized documents or Employment Records hence requiring the makers of the same to testify or not.
- 2.Whether the objection could be raised during hearing.
- 3.Who bears the costs of this Appeal?
Key legal issues
#Whether the impugned documents (statement of Dr. Diana Onyango, disciplinary meeting minutes, and message print-outs) were employment records or personalized documents requiring their makers to testify.
They were employment records under section 74 of the Employment Act, notwithstanding absence of letterhead, stamp or seal, and could be produced by the current Executive Director as custodian.
The documents were prepared by the Executive Director in connection with the Respondent's conduct and outline the Respondent's disciplinary record. Section 74 obliges employers to keep such records, including misconduct and disciplinary records. Following Amunya, employment records are corporate documents in the employer's custody, producible by the custodian rather than the individual author.
Whether an objection to production of documents could properly be entertained during hearing after the Respondent had testified.
Yes - although objections should ordinarily be raised at pretrial, the last-minute substitution of the employer's witness justified the objection being raised during the hearing.
The general position is that objections to document production should be raised at pretrial. However, the Respondent was served with a substituted witness statement two days to the hearing, replacing Dr. Diana Onyango, the central witness. The court retains discretion under the ELRC Procedure Rules, particularly Rule 38, to regulate its own procedure according to the circumstances of each case.
Whether the learned magistrate erred in exercising the special employment and labour relations jurisdiction as if it were ordinary civil jurisdiction.
Yes, in part - the ELRC regime dispenses with technicalities; documents need not be produced by their authors and courts may act on filed documents without calling their makers.
Section 20 of the E&LRC Act requires the court to act without undue regard to technicalities, anchored in Article 159 of the Constitution. Rules 21 and 25(3) of the Procedure Rules allow determination on documents and written statements, with discretion to require attendance of a deponent, and Rule 38 permits the court to regulate its own procedure. Section 35 of the Evidence Act also permits production by persons other than makers.
Legal principles established
#- Employment and disciplinary records kept pursuant to section 74 of the Employment Act are corporate/employment records producible by the employer's custodian, not personalized documents requiring their makers to testify.
- Under the ELRC Act and its Procedure Rules, courts are not bound by strict evidentiary technicalities; documents need not be produced by their authors, and the court may regulate its own procedure.
- An objection to production of documents should ordinarily be raised at pretrial stage, but the court retains discretion to permit it where circumstances, such as a last-minute substitution of the employer's witness, justify it.
Court orders
#- 1.The objection on production of documents could be raised during the Appeal.
- 2.The documents in question were employment documents and the current Executive Director could produce them.
- 3.The suit to proceed to defence hearing with the documents on record.
- 4.Each party to bear their own costs of the Appeal.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Ngong Magistrates' Court (subordinate court, employment and labour jurisdiction)
- CMEL No. E008 of 2021
- Jurisdiction invoked
- First appellate jurisdiction over the subordinate court's ruling in an employment and labour relations matter (Employment and Labour Relations Court Act; Legal Notice No. 6084 of 2018 conferring magistrates' special jurisdiction)
Relief refused
#Wholesale setting aside of the trial court's ruling and decree in favour of the Appellant in full
The appeal succeeded only in part; the court allowed the documents to be produced by the current Executive Director but did not disturb the objection being raised during the hearing
Costs
Each party to bear their own costs of this Appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In conclusion the documents in question were employment records and not individual documents hence no need to call the makers of the documents.
I do agree that there is no strict requirement in proceedings of this Court, that documents must be produced by their authors as such provision would ofiend the above provisions which are against any technicality.
I agree that an objection should be raised at pretrial stage as was held on the above case of Amunya but the court is awake to the fact that all was well until the Appellant changed its witness. The Court is always awake to the circumstances of each case. It is never cast on a stone.
a. The objection on production of documents could be raised during the Appeal. b. The Documents in question were employment documents and the current Executive Director could produce them. c. The Suit to proceed to defence hearing with the documents on record. d. Each party to bear their own costs of this Appeal.
Issues in the judgment
#Internal numbering anomaly: the quoted extract from Amunya is numbered '30.' immediately after paragraph 40, duplicating a paragraph number used earlier in the judgment.
Chronological inconsistency in the memorandum of appeal grounds referencing a disciplinary meeting 'held on 23.1.2023' and an objection 'dated 1st February,2021' in a suit instituted in 2021 and heard in December 2021.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Society for the Protection and Care of Animals v Mwalimu (Employment and Labour Relations Appeal E216 of 2022) [2023] KEELRC 3134 (KLR)", Case Analysis (2023). Judicial Review Appeal arising from Ngong CMEL No. E008 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3134/eng@2023-11-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.