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ELRCPartially Allowed· [2024] KEELRC 343 (KLR)

Mbugua v Echo Network Africa (Employment and Labour Relations Petition E064 of 2022) [2024] KEELRC 343 (KLR)

Employment and Labour Relations Court
23 February 2024
6,619 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded an unfairly dismissed employee over Kshs 3 million, ruling secret audio recordings and ambush disciplinary hearings violate constitutional rights.

What this practically means

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Executive summary

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The Petitioner, employed by the Respondent from October 2014 and serving under a contract extended to 31st March 2024, was summarily dismissed for gross misconduct after her employer played an anonymous audio recording of a private tele-conversation between her and a colleague at a meeting she believed was a routine working session. She sued for declarations of constitutional violations and reliefs including twelve months' compensation, notice pay, unpaid leave, balance of contract, gratuity and a certificate of service. The court framed three issues: admissibility of the electronic evidence, constitutional violations, and reliefs. On the first issue, the court held that the audio recording was obtained in breach of the Petitioner's right to privacy of communications under Article 31(d) and was therefore inadmissible under Article 50(4) of the Constitution; it also failed the conditions of Section 106B of the Evidence Act as to source and authenticity, and was expunged. On the second issue, the court found that the Petitioner was ambushed: she was never notified of the allegations, the meeting agenda concealed the disciplinary purpose, and the termination letter was dated a day before the meeting, showing predetermination. Her rights to fair hearing and fair administrative action under Articles 47 and 50 were violated, and her termination was unfair and unlawful; her privacy was also violated. On reliefs, the court awarded one month's notice pay, seven months' gross salary as compensation, prorated unpaid leave, and gratuity for the period served under the last contract, totaling Kshs 3,085,715.50, with a certificate of service and costs to the Petitioner. The claim for the balance of the contract was declined as anticipatory relief, following the Court of Appeal's guidance that no damages are payable for unserved contract term.

Key legal issues

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01

Admissibility of the audio recording and transcription

Holding

The audio recording was inadmissible and was expunged from the record

Reasoning

The recording was obtained from an anonymous source without the Petitioner's consent, breaching Article 31(d) privacy, and was therefore excluded under Article 50(4). Independently, the Respondent as proponent failed to satisfy Section 106B(2) of the Evidence Act: it did not show how the recording was created, the device used, its working condition, or its source and authenticity. RW1 did not know the source of the recording.

p. 10
02

Whether the right to fair hearing and fair administrative action was violated

Holding

The Respondent violated Articles 47 and 50 of the Constitution

Reasoning

The Petitioner was invited to a meeting whose agenda did not disclose a disciplinary hearing, was unaware of the allegations, and could not prepare a defence. The termination letter was dated 27th September 2021, a day before the meeting, showing the decision was predetermined. The requirements of Section 41 of the Employment Act were not complied with, rendering the termination unfair and unlawful.

p. 11
03

Whether the right to privacy was violated

Holding

The Respondent violated the Petitioner's right to privacy under Article 31(d)

Reasoning

A private communication is confidential and can only be accessed upon express permission and consent of the owner. No such consent to the recording of the tele-conversation was demonstrated, and the Respondent did not show how it gained access to the recording. The procurement of the recording therefore infringed the Petitioner's constitutional right to privacy.

p. 12
04

Reliefs payable on unfair termination

Holding

Petitioner awarded notice pay, seven months' compensation, prorated leave pay and gratuity for the period served; balance of contract claim declined

Reasoning

Compensation was fixed at seven months' gross salary considering the length of the employment relationship and the constitutional violations. Unpaid leave was prorated for the period served under the last contract. Gratuity was payable for the period served despite a clause making it payable on completion, because termination was at the Respondent's behest unfairly. The claim for the balance of the contract was declined as anticipatory relief.

p. 12

Legal principles established

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  • Evidence obtained in violation of the right to privacy of communications is excluded under Article 50(4) of the Constitution if its admission would render the trial unfair or be detrimental to the administration of justice
  • The proponent of electronic evidence bears the burden of satisfying the conditions in Section 106B(2) of the Evidence Act and establishing the record's authenticity
  • An employee must be notified of the allegations against her and given an opportunity to prepare a defence before termination; a meeting that ambushes the employee is not a fair hearing and a termination letter predating the meeting shows predetermination
  • Claims for the balance of unserved contract are anticipatory and not payable

Court orders

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  1. 1.A declaration that the Respondent violated the Petitioner's rights enshrined under Articles 47, 31(d) and 50 of the Constitution
  2. 2.A declaration that the termination of the Petitioner from employment was unfair and unlawful
  3. 3.Award of Kshs 314,143.00 being one month's salary in lieu of notice
  4. 4.Award of compensatory damages of Kshs 2,199,001.00 equivalent to seven months' gross salary
  5. 5.Award of Kshs 157,071.50 being unpaid prorated leave pay
  6. 6.Award of Kshs 415,500.00 being gratuity for six months served under her last contract of service
  7. 7.Total award of Kshs 3,085,715.50
  8. 8.The expungement of the audio recording from the record as inadmissible
  9. 9.The Petitioner to be issued with a Certificate of Service pursuant to Section 51(1) of the Employment Act
  10. 10.The Petitioner to have the costs of the suit

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50(4)
  • Constitution of Kenya, 2010Article 31(d)
  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 50
  • Constitution of Kenya, 2010Articles 26, 41, 43, 23(3), 159(2)(d), 48
  • Employment ActSections 41, 44, 47(5), 51(1)
  • Evidence Act (Cap 80)Sections 78A(1), 78A(2), 106A, 106B (including 106B(1), 106B(2), 106B(4))
  • Computer Misuse and Cybercrimes ActSection 14
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Act (Chapter 21)Section 1B

Cases cited (17)

  • Michael Odhiambo Opiyo vs Bidco Africa Limited
    (2021) eKLR
  • Rebecca Ann Maina & 2 others v Jomo Kenyatta University of Agriculture and Technology
    (2014) eKLR
  • David M'iti Makwacii v Kenya Defence Forces
    (2019) eKLR
  • MNN v ENK
    (2017) eKLR
  • Samwel Kazungu Kambi v Nelly Ilongo & 2 others
    (2017) eKLR
  • Pius Machafu Isindu v Lavington Security Guards Limited
    (2017) eKLR
  • Catherine Wamuyu Mugweru vs St. Andrews Zimmerman Primary & another
    (2023) KEELRC 288
  • David Ogolla Okoth v Chief Magistrate court, Kibera & 2 others
    [2016] eKLR
  • Okiya Omtatah Okoiti & 2 others v Attorney General & 4 others
    [2020] eKLR
  • Millitonic Mwendwa Kimanzi Kitute v Independent Electoral and Boundaries Commission & 2 others
    [2017] eKLR
  • Elizabeth Ongoro Amollo v Francis Kajwang Tom Joseph & 2 others
    [2017] eKLR
  • William Odhiambo Oduol v Independent Electoral & Boundaries Commission & 2 Others
    (2013) eKLR
  • Kenya Human Rights Commission v Communications Authority of Kenya & 4 others
    [2018] eKLR
  • D K Njagi Marete v Teachers Service Commission
    [2020] eKLR
  • Elizabeth Wakanyi Kibe v Telkom Kenya Ltd
    [2014] eKLR (Civil Appeal No. 25A of 2013)
  • Engineer Francis N. Gachuri v Energy Regulatory Commission
    [2013] eKLR (Industrial Cause No. 203 of 2011)
  • Mary Mutanu Mwendwa v Ayuda Ninos De Africa-Kenya
    [2013] eKLR
Jurisdiction invoked
Articles 23, 47, 50 and 41 of the Constitution of Kenya, 2010; Employment Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Mbugua v Echo Network Africa (Employment and Labour Relations Petition E064 of 2022) [2024] KEELRC 343 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/343/eng@2024-02-23

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