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ELRCDismissedNotice of Motion dated 29th October, 2024 in a Memorandum of Claim dated 13th June, 2024· [2025] KEELRC 613 (KLR)

Adan v Premier Bank Kenya (Cause E455 of 2024) [2025] KEELRC 613 (KLR)

Employment and Labour Relations Court
28 February 2025
ANAgnes Kitiku Nzei
1,657 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court refused to throw out an employee's secret meeting recording, ruling the bank challenged it too early and disputes over recordings belong at trial.

What this practically means

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Executive summary

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The Respondent bank, facing a claim by its former Branch Manager for allegedly unfair and unlawful termination, moved the Court by Notice of Motion dated 29th October 2024 seeking to strike out paragraph 13 of the Statement of Claim, paragraph 12 of the Claimant's witness statement, and an audio recording of a 24th January 2024 Head Office meeting, alleging the recording was made without consent and captured the Head of Human Resources' private telephone conversation, in breach of the right to privacy under Articles 31 and 50(4) of the Constitution and Section 29(b) of the Data Protection Act. The Claimant opposed via grounds of opposition. Nzei J held that proceedings in the ELRC are governed by the ELRC (Procedure) Rules 2024, under which holding a pre-trial conference (Rule 40) is mandatory before the Court can be moved on discovery of documents or electronic recordings, with unresolved discovery disputes to be addressed under Rule 42. Since no pre-trial conference had been convened, the application was premature. Further, the Court could not determine at the interlocutory stage how a private conversation came to be embedded in official deliberations, and any private portion could be redacted at trial while the rest was admitted; a pre-trial review of the recording would amount to a miscarriage of justice. The application was dismissed with costs.

Key legal issues

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01

Whether an application to expunge an audio recording for breach of privacy can be made before the pre-trial conference

Holding

The application was premature; discovery disputes concerning electronic recordings must first be raised at a mandatory pre-trial conference under Rule 40, and any disagreement dealt with under Rule 42

Reasoning

Rule 40(1) of the ELRC (Procedure) Rules 2024 is mandatory: a pre-trial conference must be held before the Court can be moved on discovery of documents or electronic recordings. Rule 42 then governs disagreement on discovery. The Respondent had not invited the Court to hold a pre-trial conference, so the Motion was premature.

p. 4
02

Whether the impugned portion of the audio recording should be expunged at the interlocutory stage

Holding

No; any private conversation portion can be redacted at trial when the recording is admitted, with full participation of parties

Reasoning

The Court was not told how a private telephone conversation occurred within official deliberations; that can only be determined at trial. Redaction of the offending portion is possible while admitting the rest. Reviewing the recording at the interlocutory stage to pick out the impugned part would amount to a miscarriage of justice.

p. 3

Legal principles established

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    Court orders

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    1. 1.The Notice of Motion dated 29th October, 2024 is dismissed with costs
    Jurisdiction invoked
    Article 162(2)(a) of the Constitution of Kenya 2010 (ELRC as a court of the status of the High 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, "Adan v Premier Bank Kenya (Cause E455 of 2024) [2025] KEELRC 613 (KLR)", Case Analysis (2025). Notice of Motion dated 29th October, 2024 in a Memorandum of Claim dated 13th June, 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/613/eng@2025-02-28

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