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ELRCDismissedNot stated in the judgment· [2025] KEELRC 365 (KLR)

Kioko v Singh Retread Limited & 4 others (Cause E883 of 2024) [2025] KEELRC 365 (KLR)

Employment and Labour Relations Court
13 February 2025
CBC. N. Baari
1,203 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court dismissed a worker's bid to force an NSSF inspection because he could not show his evidence was at real risk of being lost.

What this practically means

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Executive summary

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Before the Employment and Labour Relations Court at Nairobi was the Claimant's motion dated 25th October 2024, brought under Order 10 Rule 8 of the Civil Procedure Rules and Section 25 of the Civil Procedure Act. The live prayer sought an order compelling the Managing Trustee of the 4th Respondent (the NSSF) to appoint a Compliance Officer under Section 17 of the NSSF Act to enter, inspect, examine, produce and report to Court on mandatory contributions by the 1st Respondent and the Claimant for the period April 2011 to January 2024. The Applicant premised the motion on allegations that the 1st Respondent was fabricating crucial evidence and, through third parties, intimidating and threatening him to withdraw the claim, such that key evidence risked being lost or compromised. The 3rd Respondent opposed, arguing lack of jurisdiction over it, the statutory employer obligation to deduct and account for PAYE under Section 37 of the Income Tax Act, confidentiality under Section 6 of the Tax Procedures Act, and the remedy of a tax compliance certificate under Section 72. The 5th Respondent denied the allegations and contended the Claimant had not exhausted its administrative processes under the Work Injury Benefits Act. Baari J held that proof of NSSF deductions takes the form of a statement of the employee's account showing both employer and employee contributions, and that the Applicant failed to show the evidence was at risk of being lost or compromised or that it lay in the 1st Respondent's custody. The motion was held devoid of legal basis and dismissed with costs in the cause. The court also directed the 3rd Respondent to file a formal application if it sought its removal from the proceedings.

Key legal issues

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01

Whether the court should compel the Managing Trustee of the NSSF to appoint a Compliance Officer to inspect and report on mandatory contributions

Holding

The motion lacked legal basis and was dismissed

Reasoning

The evidence sought relates to statutory NSSF deductions, proof of which takes the form of a statement of the employee's account showing both employer and employee contributions. The Applicant failed to show that such evidence was under threat of being lost or compromised, or that it was in the custody of the 1st Respondent such that it could be compromised before the claim was heard. Without that foundation, the order sought had no legal basis.

p. 3
02

Whether the 3rd Respondent should be removed from the proceedings

Holding

The court directed the 3rd Respondent to file a formal application for its removal rather than removing it summarily

Reasoning

On the question whether the 3rd Respondent ought to be removed from the proceedings, the court did not make a determination on the merits of the objection to jurisdiction. Instead, it directed that a formal application be brought, leaving the question of the 3rd Respondent's continued participation to be decided on such application.

p. 3

Legal principles established

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  • An applicant seeking an order for preservation or production of evidence must demonstrate that the evidence is under threat of being lost or compromised and that it is within the custody of the party against whom the order is sought

Court orders

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  1. 1.The Applicant's motion dated 25th October 2024 is dismissed
  2. 2.The 3rd Respondent is at liberty to file a formal application seeking its removal from the proceedings
  3. 3.Costs of the motion in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 10 Rule 8
  • Civil Procedure ActSection 25
  • National Security Fund Act (National Social Security Fund Act)Section 17
  • Income Tax ActSection 37
  • Tax Procedures Act, 2015Sections 6 and 72
  • Occupational Safety and Health Act, 2007Not specified
  • Work Injury Benefits Act, 2007Sections 22(5), 28 and 30
Jurisdiction invoked
Order 10 Rule 8 of the Civil Procedure Rules and Section 25 of the Civil Procedure 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, "Kioko v Singh Retread Limited & 4 others (Cause E883 of 2024) [2025] KEELRC 365 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/365/eng@2025-02-13

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