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ELRCAllowedEldoret ELRC Cause 244 of 2017· [2024] KEELRC 2530 (KLR)

Kiwo & 341 others v Teachers Service Commission (Cause 244 of 2017) [2024] KEELRC 2530 (KLR)

Employment and Labour Relations Court
17 October 2024
MOMaureen Onyango
1,137 words in judgment
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The bottom line

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Kenya's Employment Court struck two improperly obtained documents from teachers' evidence, confirming 'without prejudice' letters and confidential internal memos cannot be used in litigation.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Eldoret, delivered virtually on 17th October 2024 by Maureen Onyango, Judge, determines a Notice of Motion dated 7th June 2024 brought by the Respondent, Teachers Service Commission, seeking expunction from the record of annexures DMK-1 and DMK-2 to the Claimants' further affidavit sworn on 17th May 2024. The Respondent alleged the documents were illegally obtained in breach of Articles 31 and 35 of the Constitution, sections 35 and 80 of the Evidence Act, and professional duty, relying on the Omtatah decision. The Claimants opposed, asserting the documents were obtained by virtue of their employment and invoking Article 35(1) and the Access to Information Act. No submissions were filed despite directions. On DMK-1, a without prejudice letter between counsel, the court applied Halsbury's Laws of England Vol 17 paragraph 213 and found no concluded settlement existed, only the Respondent's opinion on settlement, and ordered its expunction. On DMK-2, an internal TSC memo dated 23rd January 2024 from one director to another, the court found it a private communication whose possession by the Claimants was unexplained; the deponent's claim that his advocate was supplied with it was held not to establish lawful acquisition, rendering it inadmissible. The application was allowed, both annexures expunged, the affidavit to be removed and re-filed without the documents, with costs to the Respondent.

Key legal issues

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01

Admissibility of without prejudice correspondence (DMK-1)

Holding

Expunged; the document contained only the Respondent's settlement opinion and no concluded agreement

Reasoning

Relying on Halsbury's Laws of England Vol 17 paragraph 213, the court held that without prejudice communications are inadmissible except where a binding agreement arises from them or to show negotiations occurred. Scrutiny of DMK-1 showed no concluded settlement, only the Respondent's opinion on how the matter should be settled, so it could not remain on the record.

p. 3
02

Admissibility of confidential internal memo (DMK-2) of unexplained provenance

Holding

Expunged; the deponent failed to explain how the memo addressed to a Respondent officer came into the Claimants' hands

Reasoning

The court found DMK-2 was a private communication between two senior officers of the Respondent. The deponent's assertion that the annexure was supplied to their advocate by themselves was held not to be an explanation of lawful possession. Without proof of lawful acquisition, the document was inadmissible.

p. 3

Legal principles established

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  • Without prejudice settlement communications are inadmissible unless a binding agreement arose from them or their existence is needed to show negotiations took place
  • A private internal communication between officers of a party is inadmissible unless the person producing it proves lawful possession

Court orders

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  1. 1.Application dated 7th June 2024 allowed
  2. 2.Annexures DMK-1 and DMK-2 expunged from the record
  3. 3.The whole affidavit to be physically removed from the record and returned to counsel for the Respondent, who may re-file it without the two expunged documents
  4. 4.Costs of the application to be borne by the Claimants

Authorities

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Legislation

  • Constitution of KenyaArticles 47, 48, 50(4), 159, 31, 35, 10, 27
  • Employment and Labour Relations Court Actsection 12
  • Civil Procedure Rules, 2010Order 50 Rule 1
  • Evidence Actsections 80, 35
  • Access to Information Actsection 4

Cases cited (1)

  • Okiya Omtatah Okoiti & 2 others v Attorney General & 4 others
    [2020]eKLR, Nairobi Civil Appeal No. 13 of 2015
Jurisdiction invoked
Articles 47, 48, 50(4) and 159 of the Constitution of Kenya; section 12 of the Employment and Labour Relations Court Act; Order 50 Rule 1 of the Civil Procedure Rules, 2010

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, "Kiwo & 341 others v Teachers Service Commission (Cause 244 of 2017) [2024] KEELRC 2530 (KLR)", Case Analysis (2024). Eldoret ELRC Cause 244 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2530/eng@2024-10-17

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