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ELRCOtherNot stated in the judgment· [2024] KEELRC 1928 (KLR)

Choru v Camusat Kenya Limited (Employment and Labour Relations Cause E665 of 2021) [2024] KEELRC 1928 (KLR)

Employment and Labour Relations Court
26 July 2024
OKOcharo Kebira
1,229 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This interlocutory ruling of the Employment and Labour Relations Court by Ocharo Kebira J, delivered on 26 July 2024, determines an objection raised by the Respondent's Counsel on 5 March 2024 to the production of two documents by the Claimant, who had just begun testifying. The first was an email of 27 July 2019 from the Respondent's Country Managing Director, Fabrice Gaussen, to Wilfred Waithaka, copied to over ten people but not to the Claimant, which the Respondent argued was electronic evidence produced without a certificate under section 106 of the Evidence Act, authored neither by nor sent to the Claimant. The second was an undated sample redundancy letter lacking sender and recipient, with unexplained provenance. The Claimant countered that the email concerned her and her project, that the Respondent had itself filed uncertified emails, that the letter was given to her by a former colleague, and that authenticity could be tested in cross-examination. The court held that the Respondent, which was present when the matter was certified ready for hearing on 14 July 2022, never raised the objections at the pre-trial stage as contemplated by Rule 15 of the Procedure Rules. Sections 3 of the ELRC Act and Article 159 of the Constitution demand just, expeditious and proportionate resolution; allowing the objection would aid the Respondent to escape that obligation. Proper challenges lay in an expunging application on affidavit, and authenticity was for cross-examination, with Rule 18 allowing the court to summon witnesses. The objection was dismissed as without merit. No costs order was made.

Key legal issues

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01

Admissibility of electronic evidence without a certificate under section 106 of the Evidence Act

Holding

The objection failed; belated objections at hearing frustrate the overriding objective and the court's pre-trial regime

Reasoning

The court noted the Respondent did not raise the objections at certification/pre-trial on 14 July 2022 despite being present. Sections 3 of the ELRC Act and Rule 15 of the Procedure Rules, giving effect to Article 159, require just, expeditious and proportionate resolution. Allowing the objection would aid the Respondent to escape its obligation. Objections of this nature should be raised by a supported application to expunge, not oral submissions at hearing.

p. 3
02

Proper procedure for challenging documents and testing authenticity

Holding

Challenges should be brought by application supported by affidavit; authenticity is a matter for cross-examination

Reasoning

The court held that the matters raised were more evidential than proper submissions, and that the appropriate route was an expunging application on affidavit. It further noted Rule 18 empowers the court to summon witnesses where justice demands, so doubts about authenticity of the email or redundancy letter could be resolved through cross-examination rather than exclusion.

p. 3

Legal principles established

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  • Objections to documents not raised at the pre-trial stage cannot be raised belatedly at the hearing
  • Authenticity of documents may be tested through cross-examination rather than excluded at the production stage

Court orders

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  1. 1.The objection to the production of the documents is dismissed as without merit

Authorities

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Legislation

  • Evidence Actsection 106
  • Employment and Labour Relations Court Act, 2007section 3
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 15
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 18
  • Constitution of KenyaArticle 159
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B
Jurisdiction invoked
Employment and Labour Relations Court Act, 2007 (Section 3), the Employment and Labour Relations Court (Procedure) Rules, 2016, and Article 159 of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Choru v Camusat Kenya Limited (Employment and Labour Relations Cause E665 of 2021) [2024] KEELRC 1928 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1928/eng@2024-07-26

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