Mary Nduta Kagumu v National Cement Company Ltd

listed in the Claimant’s further list of 29th May 2025, produced as exhibits 13 to 19, should be expunged. 4. Counsel for the Respondent contended that the recordings are incomplete, edited, and fragmented, raising the possibility of manipulation, as the Claimant selectively presented portions of the audio. Without expert authentication or a certificate, the audios cannot be verified, and they lack continuity from beginning to end. Counsel further noted that while the Claimant alleged she was visited by Mr. Stephen, the person in the audio was never properly introduced, thereby prejudicing the Respondent. 5. He emphasized that Article 35 of the Constitution guarantees access to information without prejudice, yet no consent was sought or provided. In his view, the Claimant breached the right of access to information, and the Respondent would suffer great prejudice if such unverified evidence were admitted. 6. Accordingly, counsel prayed that the audios marked as exhibits 14 to 19 be expunged from the record. Claimant’s submissions 7. Counsel for the Claimant, Mr. Oyunge, submitted that the audios in question were duly authenticated through a certificate produced by the Claimant. He argued that the Respondent ought to have engaged NKR ELRC CAUSE NO. E036 OF 2024 RULING 2 | PAGE

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an expert and filed a report to substantiate its objections, yet since 29th May 2025 no such objection has been filed. There is no proof that the recordings are incomplete, and the Claimant’s certificate remains valid. Although the Claimant has not testified on the audios, the next witness will address them. Counsel relied on Kinyanjui v Scania East Africa Limited [2023] KEELRC 1627 (KLR) where the court admitted audio evidence as the Claimant was a participant in the disciplinary hearing, and Njenga v DIB Bank Kenya Limited [2024] KEELRC 2122 (KLR) in support of that proposition. 8. In response, counsel for the Respondent submitted that the right to privacy is not absolute, citing Tumaz and Tumaz Enterprises Ltd & 2 Others v National Council for Law Reporting [2022] KEHC 14747 (KLR), where a similar application was found misconceived. He emphasized that the audios relate to a conversation between Stephen Musyoki and Erastus, a Respondent’s witness, concerning termination just two days before the Claimant’s dismissal. This evidence directly concerns her employment and must be heard. Counsel urged the court to allow both parties to present their NKR ELRC CAUSE NO. E036 OF 2024 RULING 3 | PAGE

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witnesses, noting that no credible evidence has been tendered to challenge the admissibility of the audios. Respondent’s further submissions 9. Counsel for the argued that although they had filed an application challenging the audios, the Claimant failed to properly verify them. He maintained that the certificate was casually signed by the Claimant and carried no evidentiary weight, as the recordings appeared fragmented, edited, and incomplete, leaving the Respondent unable to verify their authenticity. Reliance was placed on Shakunt Rajnikant Shah v Bhupendra Motichand Shah & Another [2021] eKLR, which stressed the need to verify audio evidence before admission; Mbugua v Echonet Network Africa [2024] KEELRC 1964 (KLR), which required consent of the recorded party; and Andrew Nthiwa Mutuku v Court of Appeal & 3 Others [2021] KEHC 8264 (KLR), which held that admitting audio without safeguards infringed privacy. He urged that unless the recordings are verified, complete, and authenticated, they should not be admitted. Claimant’s Counsel’s further submissions 10.Counsel submitted that this application is the Respondent’s second attempt to expunge the Claimant’s electronic evidence filed on 29th May NKR ELRC CAUSE NO. E036 OF 2024 RULING 4 | PAGE

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2025. A similar Notice of Motion dated 24th September 2025 was dismissed in the Court’s ruling of 6th November 2025, where it held that rejecting the audios without appreciating their source and content would be unfair, and directed that the hearing proceed with all parties presenting evidence and cross-examination. 11.Despite these clear directions, the Respondent renewed the application orally after the Claimant testified, which the Claimant submits is a delaying tactic contrary to the Court’s ruling. On the certificate of electronic evidence, the Respondent again challenged compliance with sections 106A and 106B of the Evidence Act. However, in Nakuru HCELRC E026 of 2025, this Court had already upheld the Claimant’s certificate as meeting the statutory threshold, recognizing it as sufficient proof of authenticity and reliability. 12. Accordingly, the Claimant prays that the Respondent’s oral application of 12th May 2026 be dismissed and that the Court reaffirm its earlier rulings, including the admissibility of the certificate dated 29th May 2025. Analysis and determination NKR ELRC CAUSE NO. E036 OF 2024 RULING 5 | PAGE

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13.The court has considered the oral and written submissions placed before it; the issue for determination is whether the audio recordings are admissible. 14.Article 31 of the Constitution guarantees every person the right to privacy, including: “......the right not to have— (c) information relating to their family or private affairs unnecessarily required or revealed; or (d) the privacy of their communications infringed.” 15.The admissibility of recordings as evidence is governed by sections 78A and 106B of the Evidence Act (Cap 80). section 78 A provides for the admissibility of electronic and digital evidence as follows: “In any legal proceedings, electronic messages and digital material shall be admissible as evidence. In estimating the weight, if any, to be attached to electronic and digital evidence, under subsection (1), regard shall be had to – a) the reliability of the manner in which the electronic and digital evidence was generated, stored or communicated; NKR ELRC CAUSE NO. E036 OF 2024 RULING 6 | PAGE

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b) the reliability of the manner in which the integrity of the electronic and digital evidence was maintained; c)the manner in which the originator of the electronic and digital evidence was identified; and; d) any other relevant factor.” 16. Section 106 B provides further guidelines on admissibility of electronic records: “Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on paper, stored, recorded or copied on optical or electromagnetic media produced by a computer (herein referred to as ‘computer output’) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein where direct evidence would be admissible.” 17. For an electronic record to be admissible in a court of law, the same must be accompanied by a certificate, and must meet the following conditions NKR ELRC CAUSE NO. E036 OF 2024 RULING 7 | PAGE

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as set out by section 106 B (4) of the Evidence Act: “In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following: (a) identifying the electronic record containing the statement and describing the manner in which it was produced; (b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer; (c) dealing with any matters to which conditions mentioned in subsection (2) relate; and (d) purporting to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate), shall be evidence of any matter stated in the certificate and for the purpose of this subsection it shall be sufficient for a matter to be stated to be the best of the knowledge of the person stating it.” 18.In this instant case, the Court, in its ruling of 6th November 2025, held that rejecting the audios without first appreciating their source and content NKR ELRC CAUSE NO. E036 OF 2024 RULING 8 | PAGE

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would be unfair, and directed that the hearing proceed with all parties presenting evidence and cross-examination. The Respondent nonetheless raised the issue again during the hearing. 19.The Court reaffirmed its position, noting that 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. In Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, the Court emphasized that the legal burden rests on the party asserting the affirmative of an issue. 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. 20.The Respondent has not demonstrated that the recording was procured through unlawful interception, surveillance, or other illegal means. On the contrary, 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. NKR ELRC CAUSE NO. E036 OF 2024 RULING 9 | PAGE

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21.The ruling delivered by this same court on 6th November 2025 concerning expunging of documents dated 20th November 2024 categorically stated: “But as already stated the court is persuaded to proceed with the hearing to its conclusion seeing there is no satisfactory evidence at this junction to justify how the audio and the emails were obtained and to determine their admissibility or otherwise.” 22.The court ordered the case to proceed for hearing. 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. 23.The application to expunge the admissibility of the audios is unmerited and is rejected. 24.Case will proceed to its logic conclusion this 30th September 2026. 25.Costs will be in the course. Orders accordingly. NKR ELRC CAUSE NO. E036 OF 2024 RULING 10 | P A G E

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Dated, Signed and Delivered virtually at Nakuru this 30th Day of September 2026. ANNA NGIBUINI MWAURE JUDGE ORDER In view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open Court. In permitting this course, this Court has been guided by Article 159(2)(d) of the Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate NKR ELRC CAUSE NO. E036 OF 2024 just, RULING expeditious, 11 | P A G E

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proportionate and affordable resolution of civil disputes. A signed copy will be availed to each party upon payment of Court fees. ANNA NGIBUINI MWAURE JUDGE NKR ELRC CAUSE NO. E036 OF 2024 RULING 12 | P A G E

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