Owoury v Dawa Limited

2. The application was supported by a supporting adavit sworn by Yvonne Manyaga, its Assistant Legal Ocer. Respondent/Applicant’s Case 3. It is the Applicant’s case that the Claimant, in her List and Bundle of Documents dated 20th July 2025, has produced and relied upon documents obtained by virtue of her employment as Group Head of Human Capital Management. Therefore, the said documents ought to be expunged from the record as they are both irrelevant to the dispute and condential to the Respondent. 4. The Applicant avers that the Claimant, having served as Group HCM Lead, she was privy to internal corporate information solely by reason of that role, and that she has, without authorization, placed such information before the Court in support of her claim. 5. It is contended that the Dawa Limited Dialogue Organization Charts, contain no material relevant to the present proceedings and instead disclose signicant details of the Respondent's corporate governance structure. 6. The Applicant further avers that the internal emails and correspondence comprising deliberations between the Dawa Group Head of Finance, the Dawa Group CEO and the Claimant in her capacity as Group HCM, contain a full account of the payroll details of the Respondent's employees, including their names, departments, remuneration and supervisor assessments. 7. It avers that the said employees are not parties to the suit, that the data contained therein does not aid the Claimant's challenge to the termination of her contract. It argues that the data remains condential and sensitive, as the aected employees being still in the Respondent's employ. 8. The Applicant asserts that the tax invoice from Anjarwalla & Khanna LLP dated 7th October 2021, bears no direct link to the Claimant's case, thus, it is irrelevant to the determination of the dispute, and is condential to the Respondent. 9. It is the Applicant's case that the dispute between the parties revolves solely around the manner of termination of the Claimant's employment contract. Consequently, the impugned documents are irrelevant to that determination, and are prejudicial to the Respondent as they disclose highly condential Board communications and deliberations to which the Claimant was privy only by virtue of her employment. 10. The Applicant contends that the disclosure of the said documents infringes the privacy rights of persons who are not parties to the suit, and that the Claimant, in producing them without the Respondent's consent, has abused the condence and trust given to her. Claimant’s Case 11. The records do not show any response from the Claimant in response to the application herein. Respondent/Applicant's Submissions 12. On prejudice, the Applicant submitted that it stands to suer great prejudice by the production of documents that are condential, sensitive, belong to third parties, and some were illegally obtained. 13. It was submitted that the internal correspondence at pages 47 to 54 and 64 to 68 constitutes highly condential Board communication, detailing an unpublished proposal by the Group Chief Executive https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2562/eng@2026-09-23 2

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Ocer to introduce an appraisal bonus plan, which the Board deliberated upon and ultimately reversed before it was ever made public to employees. 14. It is the Applicant’s argument that this correspondence evidences the Board's oversight role over the Group CEO's policy decisions and thereby exposes the Respondent's corporate governance structures. Further, the accompanying table containing employees' full names, salaries, proposed bonuses and departments, concerns non-parties whose disclosure would breach their individual right to privacy. 15. In support thereof, it cited Vincent Muema Mutuku v Rift Valley Railways (Kenya) Limited [2015] eKLR wherein the Court held: “Faith is not a party to this claim. Would it then be proper this court to order that her payslip and academic credentials be produced in court without her presence. I do not think that would be proper exercise of discretion as it is tantamount to this court and exposing her without her presence…………..allowing the production of documents relating to a 3rd party who is not party to this claim is prejudicial to her and as infringement of her right to privacy.” 16. As regards the Anjarwalla & Khanna LLP invoice, it was argued that the same was illegally obtained, contrary to Article 50(4) of the Constitution, which excludes evidence obtained in violation of a right or fundamental freedom where its admission would render the trial unfair or be detrimental to the administration of justice. 17. On the admissibility of illegally obtained evidence, the Applicant invoked RC v KKR [2021] KEHC 12803 (KLR) for the proposition that: “There is a great danger in the administration of justice if the manner of gathering evidence will not be conned to within the Constitution and the law. It cannot be the norm that every ‘Tom, Dick and Harry’ can do as it pleases in obtaining adverse evidence against another. There must be order in commanding things both in the public realm as well as in private aairs. It is that order which is dictated upon by the Constitution and the law.” 18. It was submitted that the Claimant's explanation that the invoice was forwarded to her by the Financial Controller to raise a requisition is false, since invoices are routed to legal counsel and then to nance, and the Group Head of Human Capital would have no occasion to be privy to invoice-settlement communications 19. The Applicant further submitted that unlike the other contested documents, no email from Rupal Shah was produced to substantiate the invoice's provenance. 20. It was further submitted that the Claimant would suer no prejudice were the application allowed, since Sections 43(1) and 5(7) of the Employment Act, 2007 place the burden of proving the reason for termination and disproving discrimination squarely on the employer, a burden the Applicant would continue to bear irrespective of expungement. 21. In the alternative, on irrelevance, the Applicant relied on Section 5 of the Evidence Act restricting admissible evidence to that bearing on a fact in issue, and on Order 15 Rule 1 of the Civil Procedure Rules, 2010 in dening an issue as a material proposition of fact or law armed by one party and denied by the other. 22. It is the Applicant’s submission that the facts in issue are conned to the lawfulness of the termination and the alleged discrimination, and that none of the three categories of documents speak to either. 23. The Applicant submission that the Dialogue Organization Charts were internal deliberations on communication alignment which bear no connection to unlawful termination or discrimination. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2562/eng@2026-09-23 3

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24. It submitted that the payroll correspondence relied upon concern a company-wide appraisal bonus proposal in which the Claimant's role was limited to record-keeping and implementation, and not her own performance or termination. 25. The Applicant further submitted that the invoice from Anjarwalla & Khanna LLP dated 7th October 2021, whose primary citation is that of "Provision of Employment Law Advice". It was argued that this citation is not specic to the Claimant and does not disclose the type of employment law advice sought let alone the termination of the Claimant’s employment contract. 26. I have considered the averments and submissions of the parties herein. The claimant led this claim averring unfair and unlawful termination and also praying for a nding that she was discriminated against by the respondent on account of race and nationality. 27. Attached to the claim are the impugned documents at pages 25 to 31. There are dialogue “org charts” and other communication between Renee and Frank. The applicants have averred that these are documents which came into the claimant’s possession due to her work but have now been produced without authorization from the respondent. There is no indication that the claimant has given any objection or explanation to the application and the objection thereof. 28. Given that the application remain unopposed, I will allow the application as the exclusion of the said documents may not prejudice the claimant’s case and if they may prejudice her case, she has to use proper documents to be allowed to use them as part of her evidence. Costs in the cause. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 23RD DAY OF SEPTEMBER 2026. HELLEN WASILWA JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2562/eng@2026-09-23 4

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