Beckwith v Mara Wildlife Ballon Services Limited (Cause E219 of 2025) [2025] KEELRC 2713 (KLR)
The bottom line
#A Kenyan court threw out a secretly recorded settlement meeting, confirming that candid settlement talks stay off the record even if never called 'without prejudice'.
What this practically means
#Executive summary
#Key legal issues
#Whether the 19th December 2024 meeting was a settlement negotiation attracting without prejudice privilege
The Court found the deliberations were settlement negotiations attracting implied without prejudice privilege, notwithstanding the absence of an express label
Having considered the audio recording and transcript, the Court found the meeting took place post-termination and revolved around reasons for termination, legality of the procedure and terminal dues, with no consensus reached. The Claimant's own opening remarks showed the parties negotiated with a view to resolving the matter outside court, engaging openly and without inhibition. The protection under Section 23 of the Evidence Act aligns with the constitutional imperative in Article 159(2)(c) to promote ADR.
Whether the without prejudice privilege was waived or lost through voluntary disclosure
The exceptions to the without prejudice rule did not apply because the negotiations did not culminate in any agreement; the Court found it manifestly unfair to admit the statements against the Respondent
The Court accepted that exceptions permit admission of without prejudice communications only in exceptional circumstances, chiefly to establish or determine the existence of a binding agreement. Since the deliberations produced no consensus, the exceptions were inapplicable. Admitting statements made during bona fide settlement discussions against the Respondent would defeat the object of out-of-court settlement and Article 159(2)(c).
Legal principles established
#- Parties must be allowed to negotiate candidly in settlement forums without fear that statements made there will later be used against them in court
- Without prejudice protection may attach by implication even where negotiations are not expressly labelled 'without prejudice'
- Communications made without prejudice are admissible only in exceptional circumstances, such as to establish the existence of a binding agreement arising from the negotiations
Court orders
#- 1.The Respondent's objection is upheld and the audio recording of the meeting of 19th December 2024 and the attendant transcript are expunged from the record
- 2.Costs shall be in the cause
- Jurisdiction invoked
- Articles 159(2)(c), 50(4) and 25(c) of the Constitution read with Section 23 of the Evidence Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Beckwith v Mara Wildlife Ballon Services Limited (Cause E219 of 2025) [2025] KEELRC 2713 (KLR)", Case Analysis (2025). Not stated in the judgment (employment and labour relations cause; Respondent's Notice of Objection dated 28th May 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2713/eng@2025-10-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.