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ELRCDismissedNot stated in the excerpt (Notice of Motion dated 9th November 2023)· [2024] KEELRC 1886 (KLR)

Manoti v Kenya Revenue Authority (Employment and Labour Relations Cause E370 of 2021) [2024] KEELRC 1886 (KLR)

Employment and Labour Relations Court
12 July 2024
AMAnna Ngibuini Mwaure
2,413 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 ruled NEMA's ex-employee could use internal memos as evidence because the employer failed to prove they were stolen or privileged.

What this practically means

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Executive summary

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The Respondent/Applicant (National Environment Management Authority) moved the Employment and Labour Relations Court by notice of motion dated 9th November 2023 seeking expungement of two internal memos dated 13th June 2019 and 8th July 2019 contained in the Claimant's list of documents filed on 3rd October 2023, together with costs in the cause. The Applicant argued the memos were privileged under section 134 of the Evidence Act, were illegally procured by the former employee after his resignation, and were obtained without recourse to Article 35 of the Constitution or the Access to Information Act. The Claimant opposed, asserting he accessed the memos in the ordinary course of his work in the Legal Services & Board Coordination Department, that they arose from implementation of a judgment in ELRC No. 547 of 2018, and that they were filed and served before the case was set down for hearing under Rule 14(10) of the ELRC (Procedure) Rules, 2016. Framing the single issue of whether the memos were illegally procured privileged documents and thus inadmissible, the court held the Applicant bore, and failed to discharge, the burden of proving illegality under sections 107 and 108 of the Evidence Act. The memos were public documents emanating from a court finding, and were distinguished from the authorities on privileged and unlawfully obtained documents. The documents were held admissible, the application dismissed, with costs in the cause. Judgment delivered virtually at Nairobi on 12th July 2024 by Anna Ngibuini Mwaure, Judge.

Key legal issues

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01

Admissibility of internal memos alleged to be illegally procured privileged documents

Holding

The memos were neither privileged nor illegally procured and were admissible

Reasoning

The court applied the burden of proof under sections 107 and 108 of the Evidence Act, finding no evidence of illegal procurement. The memos emanated from a court judgment in ELRC 547/2018, were accessible to staff in the Legal Services department, and were not shown to be privileged or confidential. They were therefore distinguishable from authorities cited by the applicant.

p. 5
02

Whether the documents were properly filed under Rule 14(10) of the ELRC (Procedure) Rules

Holding

Filing was procedural since the suit had not been set down for hearing

Reasoning

Rule 14(10) as read permits a party to file and serve documents at least fourteen days before the case is set down for hearing. The claimant filed and served the documents on 3/10/2023 while the suit had not yet been set down, so no leave was required.

p. 6

Legal principles established

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  • He who alleges illegal procurement of documents must prove it; the burden rests on the party alleging illegality
  • Documents filed in a suit before the case is set down for hearing are filed procedurally without need of leave

Court orders

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  1. 1.The documents the subject of the notice of motion dated 9th November 2023 are held admissible
  2. 2.The Respondent's notice of motion dated 9th November 2023 is dismissed
  3. 3.Costs will be in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 35
  • Constitution of Kenya, 2010Article 50(4)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Evidence Act (Chapter 80, Laws of Kenya)Sections 107, 108, 130-137, 134, 61
  • Access to Information Act, 2016Sections 6, 8, 9
  • Advocates ActSection 32B
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 14(10)
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (7)

  • Derby and Company Limited and Others vs. Weldon and Others
    (1990) 3 ALL ER 672
  • Anarita Karimi Njeru v Republic
    [1979] eKLR
  • Jackline Chpkemoi Kimeto v Shafi Grewal Kaka & 3 others
    [2019] eKLR
  • Susan Wariara Kariuki v Diakonie Katastrophenhilfe
    [2016] eKLR
  • SBI International Holdings AG (Kenya) v Amos Hadar
    [2015] eKLR
  • Okiya Omtatah Okoiti & 2 Others v Attorney General & 3 Others
    [2014] eKLR
  • Erastus Gitonga & Others vs National Environment Authority
    Nairobi ELRC No. 547 of 2018
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court over an interlocutory application in a pending suit; Article 162(2) jurisdiction implied by forum

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, "Manoti v Kenya Revenue Authority (Employment and Labour Relations Cause E370 of 2021) [2024] KEELRC 1886 (KLR)", Case Analysis (2024). Not stated in the excerpt (Notice of Motion dated 9th November 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1886/eng@2024-07-12

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