https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2259

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT & LABOUR RELATIONS COURT** **AT NAIROBI** **ELRC CAUSE NO. E833 OF 2025** ***(Before Hon. Lady Justice Hellen Wasilwa, J)*** **CHRISTINE APIMO......……………........CLAIMANT/RESPONDENT** **VS** **HATCH TECHNOLOGIES......................RESPONDENT/APPLICANT** **RULING** 1. The Respondent/ Applicant filed a Notice of Motion application dated 15th December 2025seeking orders:- 2. *THAT the alleged HR Manual, being document number 5 on the Claimant's List and Bundle of Documents dated 25-08-2025, be struck out and expunged from the record.* 3. *THAT the costs of this application be provided for.* **Respondent/Applicant’s Case** 1. The Applicant avers that the HR Manual produced by the Claimant/Respondent dated 25th August 2025 was never approved by the Applicant for use and was not circulated to its employees. 2. It avers that the document was merely a draft stored in the XDRIVE folder, which is used for documents undergoing amendment before finalisation and dissemination to employees in PDF format. 3. The Applicant further contends that the Claimant/Respondent accessed and obtained the draft HR Manual without its knowledge or consent. 4. It asserts that, by the Claimant’s own admission, the document was incomplete, remained under review as employees submitted their comments, and had only been edited by the Claimant for a total of three minutes, demonstrating that it was not a final or operative policy document. 5. The Applicant states that admission of the impugned document would violate its constitutional right to a fair hearing and render the trial unfair by requiring it to respond to a document that had neither been adopted nor acquired any legal force or binding effect within the organisation. 6. The Applicant further avers that admitting the document would amount to condoning the Claimant’s alleged unlawful acquisition of the document in violation of Article 31 of the Constitution on the right to privacy, including the privacy of communication. 7. It is therefore the Applicant’s case that the impugned HR Manual ought to be excluded and struck out from the record in order to safeguard the integrity of the proceedings, uphold justice and fairness, and preserve the rule of law. **Claimant/Respondent’s Case** 1. In opposition to the application, the Claimant/Respondent filed a replying affidavit dated 8th March 2026. 2. The Claimant/Respondent avers that the averments contained in the supporting affidavit of Grace Njeri Waraga which accompanied the application, are false, misleading and constitute a deliberate misrepresentation of the facts. 3. The Claimant/Respondent states that the impugned HR Manual was at all material times stored in the Applicant’s Hatch Technologies Shared Resources – XDRIVE under the shared directory path ADMIN > HR > HR MANUAL, which was accessible to employees through the company’s shared network drive. 4. It is the Claimant/Respondent’s case that, by virtue of her employment, she had legitimate and authorised access to the document, which was neither private, restricted nor confidential. She therefore contends that the allegation that she accessed or obtained the document without the Applicant’s consent is false and misleading. 5. The Claimant/Respondent further avers that the document properties demonstrate that the HR Manual was an authentic company document. She states that the files titled *‘HR MANUAL – HATCH TECHNOLOGIES Revised*’ and *‘HR MANUAL – HATCH TECHNOLOGIES merged’* identify her as the last person to modify the documents on 8th July 2025, while the original author is recorded as Hatch Technologies. 6. She contends that these details confirm that she had legitimate write-access to the documents in the course of her employment and negate the Applicant’s assertion that the HR Manual had never been shared with employees. 7. It is the Claimant/Respondent’s case that the contention that admission of the HR Manual violates Article 31 of the Constitution is without legal basis. Article 31 protects against arbitrary or unlawful intrusion into private affairs and cannot be invoked where an employee accesses documents from an employer’s shared network drive in the ordinary course of employment. 8. She avers that the allegation that the document was illegally obtained is a deliberate attempt to suppress relevant documentary evidence. 9. The Claimant/Respondent also asserts that the Applicant’s argument that the HR Manual had no force of law because it had not been adopted or circulated relates to the evidential weight to be attached to the document rather than its admissibility. 10. She contends that the Applicant has improperly conflated the issues of admissibility and probative value in an attempt to exclude material evidence from the record. 11. It is further the Claimant/Respondent’s case that the application is frivolous, vexatious, brought in bad faith and amounts to an abuse of the court process. 12. She avers that the Applicant is aware, or ought to be aware, that the HR Manual was accessible on its shared network drive. She therefore maintains that the document is genuine, relevant and lawfully obtained and urges the Court to dismiss the application with costs. **Respondent/Applicant’s Submissions** 1. It is the Applicant's submission that the sole issue for determination is whether the impugned document ought to be expunged from the record. 2. The Applicant submitted that the Claimant, in its Replying Affidavit, admits to having modified the HR Manual, which is in word format, on 8th July 2025 at 12:55 hours. 3. It was further submitted that annexures CA-01 and CA-02 attached to the Claimant's replying affidavit demonstrate that the Claimant edited the HR Manual for periods of 3 minutes and 12 minutes respectively. The Applicant's HR Manager, in the supplementary affidavit, deponed that the XDRIVE folder is used to store documents that are still undergoing amendment, and that once finalized, such documents are shared with employees in PDF format. 4. On this basis, the Applicant submitted that the word version of the HR Manual relied upon by the Claimant was not a final copy but a draft still under internal discussion, and that no signed version has been produced. The Applicant accordingly urged that the unsigned version listed among the Claimant's documents be expunged from the record. 5. In support, the Applicant relied on [***Thande v National Environment Trust Fund (Netfund) [2025] KEELRC 2572 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2572/eng%402025-09-25), where the Court held that the existence of a Human Resource Manual does not automatically incorporate its terms into individual contracts of employment unless the contract expressly incorporates the Manual's provisions. It was submitted that the Claimant's contract contains no such incorporation clause, particularly as the Manual remained under review and had not yet been adopted for use by the organization. 6. The Applicant further relied on [***Kennedy Muriithi Riungu v Sanlam Investment Limited [2019] KEELRC 114 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/114/eng%402019-12-17), where the Court observed that a generic composite copy of a Human Resource Manual, absent proof that the Claimant had been presented with and signed the same in acceptance, could not bind the employee. On this authority, it was submitted that the HR Manual produced by the Claimant was similarly a generic, unfinalized version still undergoing review, thus, incapable of founding any binding obligation on the Applicant. **Claimant/Respondent’s Submissions** 1. The Respondent submitted on four issues: The HR Manual was lawfully and legitimately obtained in the ordinary course of the Claimant’s employment; In any event, the threshold under Article 50(4) of the Constitution for exclusion of evidence has not been met; In any event, the threshold under Article 50(4) of the Constitution for exclusion of evidence has not been met; The grounds advanced, draft status, absence of signature, non-incorporation into the contract, go to weight, not admissibility, and are matters reserved for trial; The application is an attempt to deprive the Court of material evidence and should be dismissed with costs. 2. On the first issue, the Claimant/Respondent that the document was stored in the Respondent/Applicant’s shared XDRIVE network under the ADMIN > HR > HR MANUAL folder, which was accessible to employees. It was argued that, as an employee with authorised access to the shared drive, she merely accessed the document in the same manner as any other employee and that there was no unlawful access, hacking, subterfuge or intrusion. 3. The Claimant/Respondent further submitted that the Applicant’s own supplementary affidavit confirms that the document was undergoing internal review and employees were invited to give their views, thereby reinforcing that the document was in circulation among employees and not confidential or restricted. 4. On the second issue, Claimant/Respondent submitted that the Applicant had to satisfy the threshold for exclusion of evidence under Article 50(4) of the Constitution. She argued that evidence is only excluded where it has been obtained in violation of a constitutional right and its admission would either render the trial unfair or otherwise be detrimental to the administration of justice. 5. In support thereof, she relied on [***John Muriithi & 8 others v Registered Trustees of Sisters of Mercy (Kenya) t/a “The Mater Misericordiae Hospital” & another [2018] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1282/eng%402018-07-25), where the Court held that *“…..in Kenya, illegally obtained evidence is admissible so long as it is relevant to the fact in issue or its admission would not affect the fairness of the trial,”* and emphasised that the Court’s primary duty is to do justice using the evidence before it. 6. The Claimant/Respondent also relied on [***Njenga v Dib Bank Kenya Limited [2023] KEELRC 1549 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1549/eng%402023-06-15), submitting that irregularly acquired evidence is not automatically inadmissible and that the burden rests on the party seeking exclusion to demonstrate prejudice to a fair trial or detriment to the administration of justice. It was argued that the Respondent/Applicant failed to demonstrate any such prejudice. 7. On the alleged violation of Article 31 of the Constitution, the Claimant/Respondent submitted that Article 31 of the Constitution, read together with Article 28, protects the family or private affairs of an individual and is rooted in the personal and intimate sphere of life. 8. The Respondent submitted that an internal HR policy manual drafted for circulation to staff and stored on a shared drive expressly created for the benefit of all employees is the opposite of a private affair, and that whatever entitlement a body corporate may have to invoke Article 31, its scope must be consistent with the nature of the right and of the entity asserting it. 9. It was submitted that the Applicant's own evidence was fatal to its privacy claim, since Grace Njeri Waraga deponed that the document was being edited as employees gave their views on it, confirming that it was already in circulation among staff such that no reasonable expectation of privacy could attach to it. 10. The Claimant/Respondent submitted that the grounds advanced by the Applicant, draft status, absence of signature, and non-incorporation into the contract of employment, went to weight and not to admissibility, and were matters reserved for trial. 11. The Respondent submitted that a document passes through distinct stages of filing, production and admission as an exhibit, and proof, and that the Applicant's submissions conflated these stages. It was argued that whether the HR Manual was final or draft, signed or unsigned, or incorporated into the contract, were substantive questions of fact to be resolved through evidence tested at trial, and not through a pre-trial application to strike the document before cross-examination. 12. It was submitted that the authorities relied upon by the Applicant did not assist its application, as neither authority decided whether an HR Manual is liable to be expunged from the record before trial. 13. The Claimant/Respondent submitted that the authenticity of the document was not seriously in dispute, as the document properties exhibited as CA-02 and CA-03 recorded Hatch Technologies as the original author and the Respondent as having last modified the document in the ordinary course of her duties, matters which the Applicant did not dispute. 14. On the final issue, it was submitted that the application amounted to an attempt to deprive the Court of material evidence going to the heart of the controversy between the parties, namely the existence, content, and application of the Applicant's HR policies, and that to expunge the document at this stage would pre-empt rather than assist the just determination of the matter. 15. Relying again on the ***Mater Misericordiae Hospital*** case, the Claimant/Respondent submitted that the primary duty of the Court is to do justice using available evidence not obtained in breach of the Constitution or the law, and that no such breach had been demonstrated. 16. I have examined all the averments and submissions of the parties herein. The applicant seeks removal of the HR document submitted by the claimant on the ground that it was not approved by the respondent. 17. Whether or not the said document was approved or not is a matter of evidence which can be brought out during the hearing of the cause. The respondents have room to establish their contention even in cross examination. I would decline to allow the application at this stage and reserve the inherent powers of this court to strike out or declare unauthentic documents as such. Costs shall be in the cause. **Dated, Signed and Delivered virtually at Nairobi this 30th Day of July 2026.** **HELLEN WASILWA** **JUDGE**