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ELRCDismissed· [2024] KEELRC 584 (KLR)

Osman v Cabinet Secretary, Ministry of State for Defence and Chairperson, of the Defence Council & another (Cause 32 of 2014) [2024] KEELRC 584 (KLR)

Employment and Labour Relations Court
15 March 2024
JRJames Rika
890 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court allowed a worker's photocopies as evidence because the employer, holding the originals, never objected for ten years.

What this practically means

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Executive summary

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This was a ruling on an interlocutory application by the Respondents in a long-pending employment claim filed in 2014. The Respondents objected formally, by application dated 5th October 2023, to the production by the Claimant of the only three documents he intended to rely on (HAO 1 - certificate of service and discharge; HAO 2 - Part II Orders summarising charges and the discharge decision; HAO 3 - statutory notice under the Government Proceedings Act), arguing that they were uncertified photocopies and that secondary evidence was unjustified under Sections 68(2)(c), 80(1) and 81 of the Evidence Act. The Claimant opposed through grounds of opposition. The Court declined the application. It noted that the documents form part of the Claimant's employment records, of which the first Respondent is the statutory custodian under Section 74 of the Employment Act; that the Respondents had conceded in their 2014 Statement of Response that the Claimant was employed by the Kenya Defence Forces and discharged under Section 68 of the Armed Forces Act; that they had notice of the photocopies since 2014 and never contested them or produced originals or alternative documents. The Court characterised the application as a second attempt to delay the Claim, after an earlier unsuccessful limitation objection, contrary to the Court's principle objective of just, expeditious, efficient and proportionate dispute resolution under Section 3 of the E&LRC Act. The application was dismissed and the Claim directed to be fixed for further hearing on an accelerated basis. No costs order was made.

Key legal issues

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01

Admissibility of photocopy/secondary evidence of employment records

Holding

The objection under Sections 68(2)(c), 80(1) and 81 of the Evidence Act was declined; the photocopies were admitted as part of the Claimant's employment records.

Reasoning

The documents comprise certificates of service and discharge required by statute, Part II Orders and a statutory notice. The Respondents are custodians of the originals under Section 74 of the Employment Act, conceded the employment and discharge in their Statement of Response, had notice of the photocopies since 2014, and never produced originals or contradicting documents. Expunging the documents would leave the Claim unsupported in circumstances where the Respondents themselves concede the underlying facts.

p. 2
02

Abuse of process through serial technical objections

Holding

The application was a second attempt to derail or delay the long-pending Claim after the earlier limitation objection failed, and was untenable.

Reasoning

The Respondents had already raised an unsuccessful objection on limitation. They raised the admissibility objection informally at the hearing and only formally by application dated 5th October 2023, some ten years after filing, without contesting the documents in the intervening period. This 'objection in instalments' approach ran contrary to the principle objective of the Court under Section 3 of the E&LRC Act.

p. 2

Legal principles established

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  • A party that is the custodian of employment records and has not contested photocopied documents since filing, and which produces no original or alternative documents, cannot successfully object to production of the photocopies on grounds of admissibility under the Evidence Act.
  • The Court's overriding objective of just, expeditious, efficient and proportionate resolution of disputes outweighs frivolous technical objections.

Court orders

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  1. 1.The Application filed by the Respondents dated 5th October 2023 is declined
  2. 2.The Claim to be fixed for further hearing on an accelerated basis
Jurisdiction invoked
Section 3 of the Employment and Labour Relations Court Act

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, "Osman v Cabinet Secretary, Ministry of State for Defence and Chairperson, of the Defence Council & another (Cause 32 of 2014) [2024] KEELRC 584 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/584/eng@2024-03-15

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