[2023] KEELRC 1878 (KLR)
The court held that employment and labour relations proceedings are sui generis and not strictly bound by the technical requirements of the law of evidence, including section 106B of the Evidence Act. The absence of a certificate for electronic evidence, such as an email, does not in itself justify expunging the...
Source-derived case information.
- Citation
- [2023] KEELRC 1878 (KLR)
- Parties
- Applicant: Ftsum Mehari Berhe; Respondent: Canaan Developers Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause E587 of 2022
- Procedural Posture
- Employment Cause / Ruling on Evidentiary Objection
- Outcome
- Objection to admissibility of email disallowed.
- Judges
- Nzioki wa Makau
- Legal Topics
- Electronic Evidence, Admissibility of Documents, Section 106b Evidence Act, Procedural Technicalities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ftsum Mehari Berhe
Applicant
Canaan Developers Limited
Respondent
Procedural Posture
Employment Cause / Ruling on Evidentiary Objection
Legal Issues
- 1 Whether an email produced by the claimant without a certificate under section 106B of the Evidence Act is admissible in evidence.
- 2 Whether failure to attach a certificate of electronic evidence warrants expunging the document in employment and labour relations proceedings.
Ratio Decidendi
The court held that employment and labour relations proceedings are sui generis and not strictly bound by the technical requirements of the law of evidence, including section 106B of the Evidence Act. The absence of a certificate for electronic evidence, such as an email, does not in itself justify expunging the document where the content is not challenged. The court emphasized that procedural technicalities should not defeat substantive justice, especially where the objection is solely on the manner of production and not the substance of the evidence. Accordingly, the objection to the admissibility of the email was found to be without merit and was disallowed.
Court Disposition
Objection to admissibility of email disallowed.
Orders
- The objection to the production of the email is dismissed.
- The email remains on the record as evidence.
Full Case Text
Judgment text and source record
20 paragraphs
Berhe v Canaan Developers Limited (Cause E587 of 2022) [2023] KEELRC 1878 (KLR) (31 July 2023) (Ruling)
Neutral citation: [2023] KEELRC 1878 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Nairobi
Cause E587 of 2022
Nzioki wa Makau, J
July 31, 2023
Between
Ftsum Mehari Berhe
Claimant
and
Canaan Developers Limited
Respondent
Ruling
1. The respondent’s counsel Mr Kipyegon objects to the production of the email produced by the Claimant. He submits it does not comply with the law on electronic evidence as no certificate has been attached. He asserts section 106B of Evidence Act is not adhered to and such document should be expunged.
2. The claimant is opposed and his Counsel Mr Mohamednur urges the court not to allow the expunging of the document. He asserts there is no objection being raised as to the content of the same but rather the manner it is produced. He urges the court to apply the principles in Article 159 to ensure the matter of admission is not defeated on the basis of a technicality.
3. In reply, Mr Kipyegon submits the email is a forward and forwarded messages allow for alteration or manipulation. He argues that the electronic records are of necessity to be produced under certificate as they are capable of manipulation and the authentication required would ensure the contents are sacrosanct. He submits the response by the Counsel for the Claimant does not vindicate the document. He urges the court to disallow it for the reason it is not authenticated.
4. Court proceedings in the employment and labour relations sphere have over time morphed and whereas the parties are deemed to know of the provisions of Rule 14(5) and fact that the strict rules of the law of evidence are not applicable, in regards to employment matters, as even testimony of the respondent can be taken first. Employment matters are sui generis and a failure to annex the certificate as sought by the Respondent in this case, cannot be basis for the expunging of the email. In any event, the Court did not hear the Respondent to say that the email’s contents are impugned. Instead, focus in the failure to annex a certificate under section 106B of the Evidence Act. In my considered view objection is not merited and is disallowed.
Orders accordingly.
Dated and delivered at Nairobi this 31stday of July 2023Nzioki wa MakauJUDGEPage 1 of 1