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ELRCDismissedNot stated in judgment· [2024] KEELRC 2567 (KLR)

Mallinga v Girl Effect Services (Cause E596 of 2023) [2024] KEELRC 2567 (KLR)

Employment and Labour Relations Court
24 October 2024
LNLinnet Ndolo
860 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court ruled that secretly recording a workplace conversation does not automatically make that recording inadmissible as evidence.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi, delivered virtually by Linnet Ndolo, Judge, on 24th October 2024, determines a preliminary objection dated 3rd October 2023 raised by the Respondent seeking to bar production of an audio recording and transcription of a private conversation of 21st March 2023 between the Claimant and the Respondent's General Counsel. The Respondent argued that production of the recording offended Articles 31(d) and 50(4) of the Constitution and several provisions of the Data Protection Act, that it was illegally obtained and constituted entrapment, that the General Counsel neither knew of nor consented to the recording, and that it infringed the Respondent's right to privacy and was self-incriminating. The Claimant opposed, contending that the objection raised factual issues outside the Mukisa Biscuit threshold, that Section 45(c) of the Data Protection Act permits recordings necessary for the establishment, exercise or defence of a legal claim, that the Respondent relied on the same conversation in its witness statement, and that the recording evidenced coercion by the Respondent. The court held that an objection to a single piece of evidence that would not dispose of the suit is not a true preliminary objection, but determined the matter on its merits as an ordinary objection. Noting that the Respondent identified no personal data in the recording and that its own witness statement referenced the meeting, the court held that covert recording does not of itself render evidence inadmissible, leaving probative value for trial. The objection was overruled with costs in the cause.

Key legal issues

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01

Whether the objection qualified as a preliminary objection

Holding

It did not; it sought to exclude a piece of evidence without disposing of the suit, and was treated as an ordinary objection.

Reasoning

The court adopted the Mukisa Biscuit definition of a preliminary objection as a pure point of law capable of disposing of the suit. An objection to the admissibility of one item of evidence would not end the case and therefore fell outside the definition. The court nonetheless proceeded to determine its merit as an ordinary objection rather than striking it out on form.

p. 2
02

Whether production of the audio recording violated the Respondent's privacy rights and the Data Protection Act

Holding

No violation established; the recording was admissible.

Reasoning

The Respondent identified no personal information or data contained in the recording, and its own General Counsel's witness statement referred to the meeting giving rise to the recording. The lack of notice that the conversation was being recorded did not of itself render the evidence inadmissible; the probative value of the recording was a matter for the court weighing it against other evidence.

p. 3

Legal principles established

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  • An objection seeking to bar a single piece of evidence, which would not dispose of the suit, is not a proper preliminary objection.
  • Secrecy in recording a conversation does not, of itself, render the recording inadmissible; probative value is for the court to assess.

Court orders

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  1. 1.The Respondent's Preliminary Objection dated 3rd October 2023 is overruled with costs in the cause
Jurisdiction invoked
Original employment and labour relations jurisdiction of the Employment and Labour Relations Court

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, "Mallinga v Girl Effect Services (Cause E596 of 2023) [2024] KEELRC 2567 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2567/eng@2024-10-24

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