Mary Nduta Kagumu v National Cement Company Ltd
The bottom line
#A Kenyan court ruled that secretly recorded work conversations can be used as evidence if the recorder took part in the conversation.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the audio-electronic evidence filed by the Claimant and intended to be relied upon in support of her claim should be expunged from the record and declared inadmissible
- 2.Whether the audio recordings are admissible
Key legal issues
#Admissibility of audio recordings under the Evidence Act
Electronic and digital material is admissible; weight depends on reliability, integrity and identification of the originator under section 78A, and a certificate under section 106B(4) is required
The court set out sections 78A and 106B of the Evidence Act governing admissibility of electronic evidence and the certificate requirements. It noted the Claimant's certificate had already been upheld in an earlier ruling as meeting the statutory threshold, and the Respondent filed no expert report to substantiate claims of editing or manipulation.
Burden of proving illegal procurement of recordings
The Respondent bore and failed to discharge the burden of proving the recordings were illegally obtained
Relying on the legal burden principle in Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another and Sections 107, 108 and 109 of the Evidence Act, the court held that mere lack of consent did not prove unlawful interception or surveillance. The Claimant was a participant in the conversation and recorded it to preserve evidence.
Privacy rights versus admissibility of secretly recorded conversations
Article 31 privacy rights are relevant but non-consent alone does not establish infringement warranting expungement
The court quoted Article 31 of the Constitution on privacy of communications but held that the Respondent's established non-consent was insufficient to prove infringement of privacy or breach of the Data Protection Act, since the Claimant was herself a participant in the recorded conversation.
Abuse of process by renewing a decided application
The Respondent's renewed expungement application, after a similar motion was dismissed on 6th November 2025, was an abuse of court process
The court noted it had already ruled on 6th November 2025 that rejecting the audios without appreciating their source and content would be unfair, and directed the hearing to proceed. Renewing the application orally after the Claimant testified was a delaying tactic; the proper remedy was appeal.
Legal principles established
#- A party asserting that evidence was illegally obtained bears the legal burden of proving it under Sections 107, 108 and 109 of the Evidence Act
- Lack of consent to a recording alone is insufficient to prove infringement of the right to privacy or breach of the Data Protection Act
- A participant in a conversation who records it for preservation of evidence in an anticipated legal dispute does not thereby obtain it unlawfully
- Renewing an application already decided by the court amounts to an abuse of court process; the remedy lies in appeal
Court orders
#- 1.The application to expunge the audios is unmerited and is rejected
- 2.The case will proceed to its logical conclusion on 30th September 2026
- 3.Costs will be in the course
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment cause (ELRC Cause No. E036 of 2024); no specific constitutional provision invoked for jurisdiction
Relief refused
#Expungement of the Claimant's audio recordings (exhibits 14 to 19) from the record and declaration of inadmissibility
Respondent failed to prove the recordings were obtained illegally; the Claimant was a participant in the conversation and the application was an abuse of process
Costs
Costs will be in the course (i.e. costs reserved to be dealt with in the course of the proceedings)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The application to expunge the admissibility of the audios is unmerited and is rejected.
Case will proceed to its logic conclusion this 30th September 2026.
Costs will be in the course.
it could not expunge the recordings unless the Respondent proved they were obtained illegally, as required under Sections 107, 108, and 109 of the Evidence Act
Although the Respondent established that it had not consented to the recording, that fact alone was insufficient to prove infringement of his constitutional right to privacy or breach of the Data Protection Act.
the uncontroverted evidence before the Court shows that the Claimant herself was a participant in the conversation and recorded it solely for purposes of preservation evidence in an anticipated legal dispute.
This application would now be in the realm of the appeal against this court’s ruling. That therefore persuades the court this ruling is not merited and is to say the least abuse of court process.
Issues in the judgment
#Exhibits inconsistently numbered between submissions and prayer
Date of the oral application stated as 12th May 2026, inconsistent with the motion timeline
Prior ruling dated 6th November 2025 said to concern documents dated 20th November 2024
Statutory provisions cited inconsistently as sections 106A/106B and 78A/106B
Typographical error in the final order ('logic conclusion')
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mary Nduta Kagumu v National Cement Company Ltd", Case Analysis (2026). ELRC Cause No. E036 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2677/eng@2026-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.