Mbugua v Echo Network Africa (Employment and Labour Relations Petition E064 of 2022) [2024] KEELRC 343 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Admissibility of the audio recording and transcription
The audio recording was inadmissible and was expunged from the record
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.
Whether the right to fair hearing and fair administrative action was violated
The Respondent violated Articles 47 and 50 of the Constitution
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.
Whether the right to privacy was violated
The Respondent violated the Petitioner's right to privacy under Article 31(d)
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.
Reliefs payable on unfair termination
Petitioner awarded notice pay, seven months' compensation, prorated leave pay and gratuity for the period served; balance of contract claim declined
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.
Legal principles established
#- 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
#- 1.A declaration that the Respondent violated the Petitioner's rights enshrined under Articles 47, 31(d) and 50 of the Constitution
- 2.A declaration that the termination of the Petitioner from employment was unfair and unlawful
- 3.Award of Kshs 314,143.00 being one month's salary in lieu of notice
- 4.Award of compensatory damages of Kshs 2,199,001.00 equivalent to seven months' gross salary
- 5.Award of Kshs 157,071.50 being unpaid prorated leave pay
- 6.Award of Kshs 415,500.00 being gratuity for six months served under her last contract of service
- 7.Total award of Kshs 3,085,715.50
- 8.The expungement of the audio recording from the record as inadmissible
- 9.The Petitioner to be issued with a Certificate of Service pursuant to Section 51(1) of the Employment Act
- 10.The Petitioner to have the costs of the suit
- Jurisdiction invoked
- Articles 23, 47, 50 and 41 of the Constitution of Kenya, 2010; Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
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Cite this brief
#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.