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ELRCDismissedELRC Appeal No. E013 of 2025

Noah Andrea v Frodak Services Limited & Butali Sugar Mills Limited

Employment and Labour Relations Court
1 October 2026
3,420 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan employment appeal failed because the worker couldn't prove his former employer actually held the original documents he wanted produced in court.

What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court at Kakamega against a ruling of Hon. Josephine Nyatuga Maragia (SRM) delivered on 9th July 2025 in Butali Magistrates' Court ELRC No. 308 of 2017, dismissing the Appellant's Notice of Motion seeking to compel the Respondents to produce employment and accident-related documents and to allow secondary evidence under Section 69 of the Evidence Act. The underlying suit is a claim for damages for injuries the Appellant allegedly sustained on 16th March 2015 while working as a loader at the 2nd Respondent's factory. The Appellant had served a Notice to Produce in 2017; the Respondents filed a Notice of Non-Admission and their own list of documents. The Appellant declined inspection at pre-trial, testified and was cross-examined, and only then filed the application. The appeal was canvassed by written submissions. The court framed a sole issue: whether the trial magistrate correctly found no evidence that the Respondents possessed the original documents. It held that the treatment notes belonged to Neema Clinic, a distinct entity; the sick sheet was alleged to be a forgery; no duplicate gate pass was proved; and no copies of the employment records were availed as Section 69 requires. Production could not be ordered of documents not shown to be in the Respondents' possession or control, and the application was an attempt to fill gaps in testimony. The appeal was dismissed in its entirety, the lower court ruling upheld, the judgment applied mutatis mutandis to three related appeals, and each party ordered to bear its own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the trial magistrate correctly found and held that there was no evidence that the Respondents were in the possession of the original documents

Key legal issues

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01

Whether the trial magistrate erred in declining to compel production of the original documents under Section 69 of the Evidence Act

Holding

No error; the Appellant failed to prove the Respondents possessed the originals, and the Respondents denied possession and questioned authenticity

Reasoning

Section 69 permits secondary evidence only after notice to produce to the party holding the original. The treatment notes belonged to Neema Clinic, a distinct entity; the sick sheet was alleged a forgery; no duplicate gate pass was proved; and no copies of the employment records were availed. Production could not be ordered of documents not shown to be in the Respondents' possession or control.

p. 13
02

Whether the application to compel production was an afterthought to fill gaps in evidence

Holding

Yes; the Appellant sought production only after testifying and being cross-examined, despite having declined inspection at pre-trial

Reasoning

The Appellant ticked 'NO' in his pre-trial questionnaire indicating no need for inspection, proceeded to testify, and only then filed the application. The court held this was an attempt to fill gaps in his testimony, and he would still have the opportunity to cross-examine the Respondents' witnesses on the documents during the defence hearing.

p. 14

Legal principles established

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  • Secondary evidence under Section 69 of the Evidence Act is only available where the party proposing to give it has served a notice to produce on the party in whose possession or power the document is
  • A party cannot be compelled to produce a document whose unavailability is admitted or whose authenticity is questioned
  • A party relying on Section 69 must show it has copies of the documents it seeks to rely on

Court orders

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  1. 1.The appeal fails in its entirety
  2. 2.The Ruling of the trial court delivered on 9th July 2025 is hereby upheld
  3. 3.This judgment shall apply mutatis mutandis to Kakamega Appeal Nos E014, E015 & EO16 all of 2025
  4. 4.Each party shall meet own costs in this appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Butali Magistrates' Court
ELRC No. 308 of 2017
Jurisdiction invoked
First appeal to the ELRC from a subordinate court ruling (Employment and Labour Relations Court procedure); no specific constitutional provision invoked
Consolidated with
Kakamega Appeal Nos. E014, E015 & E016 all of 2025 (judgment to apply mutatis mutandis)

Relief refused

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Appeal to set aside the lower court ruling dismissing the Notice of Motion compelling production of documents

Appellant failed to prove the original documents were in the Respondents' possession or power as required by Section 69 of the Evidence Act

p. 15

Costs

Each party shall meet own costs in this appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It follows that the trial magistrate could not have ordered the Respondents to produce the treatment notes and the sick-sheet which were not demonstrated to be in their possession or control.
p. 13Section 69 Evidence Act - possession requirement
if a document is said to be unavailable, or where the adverse party or its agent has admitted its unavailability or questions its authenticity, such a party cannot be ordered to produce the same.
p. 13Production of documents of doubtful authenticity
The party seeking to have the original documents availed or produced is required to show that it has copies of the documents it seeks to rely on.
p. 12Prerequisite copies for secondary evidence
(i) The appeal fails in its entirety.
p. 15Final orders
(ii) The Ruling of the trial court delivered on 9th July 2025 is hereby upheld. This judgment shall apply mutatis mutandis to Kakamega Appeal Nos E014, E015 & EO16 all of 2025.
p. 15Final orders - disposition

Issues in the judgment

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minor

Conflicting dates for the Notice to Produce

minor

Notice of Non-admission dated 20th December 2012, predating the 2017 Notice to Produce

minor

Conflicting dates for the Notice of Motion

minor

Paragraph 44 misstates the party whose possession was to be proved

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, "Noah Andrea v Frodak Services Limited & Butali Sugar Mills Limited", Case Analysis (2026). ELRC Appeal No. E013 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2751/eng@2026-10-01

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