East Africa Air Charters v Muka (Employment and Labour Relations Cause E622 of 2025) [2026] KEELRC 2131 (KLR) (22 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT & LABOUR RELATIONS COURT** **AT NAIROBI** **ELRC CAUSE NO. E622 OF 2025** ***(Before Hon. Lady Justice Hellen Wasilwa, J)*** **EAST AFRICA AIR CHARTERS.......………….…...............CLAIMANT** **VS** **JEREMY KATO MUKA……………………………………..RESPONDENT** **RULING** 1. The Respondent/ Applicant filed a Notice of Motion application dated 4th December 2026 seeking orders: - 2. *THAT, pursuant to Rule 40 as read together with Rule 42 of the ELRC Court Procedure (Amendment) Rules, 2025, this Honourable Court be pleased to compel the Claimant to produce to the Respondent/Applicant, within seven (7) days, the following documents in his possession, custody, or control for purposes of discovery, inspection, and use at trial:* 3. *Mileage (statutory miles) report for August 2023;* 4. *Mileage (statutory miles) report for September 2023;* 5. *Mileage (statutory miles) report for October 2023;* 6. *Respondent’s pay slip for August 2023;* 7. *Respondent’s pay slip for September 2023;* 8. *Respondent’s pay slip for October 2023.* 9. *THAT, in default of compliance, and pursuant to Rule 42 of the ELRC Court Procedure (Amendment) Rules, 2025, this Honourable Court be pleased to impose appropriate sanctions, including entry of an adverse inference against the Claimant;* 10. *THAT costs of this application be provided for.* **Respondent/Applicant’s Case** 1. The Applicant avers that the Claimant is in possession, custody or control of documents that are material and necessary for the fair determination of the suit, namely the mileage (statutory miles) reports for August, September and October 2023, together with the Applicant’s payslips for the same period. 2. It is the Applicant’s case that these documents are directly relevant for verifying the actual remuneration paid, confirming the mileage earned during the stated months, resolving issues of underpayment, unpaid mileage and discrepancies raised in the Counter-Claim, and facilitating the accurate computation of the Applicant’s entitlements. 3. The Applicant further avers that it issued and served a Notice to Produce pursuant to Section 69 of the Evidence Act and Order 16 Rule 6 of the Civil Procedure Rules requiring the Claimant to produce the said documents, but the Claimant has failed and/or refused to comply, thereby necessitating the present Application to avert prejudice. 4. The Applicant contends that Rule 40 as read together with Rule 42 of the Employment and Labour Relations Court (Procedure) (Amendment) Rules, 2025 empowers the Court to issue directions on disclosure and compel production of documents necessary for the just and expeditious determination of the dispute. 5. The Applicant asserts that the absence of the documents has severely hampered compliance with the pre-trial directions under Rules 40 and 41 of the said Rules, including the framing of issues for determination. 6. The Applicant further states that Rule 42 of the Employment and Labour Relations Court (Procedure) (Amendment) Rules, 2025 empowers the Court to impose sanctions, including drawing an adverse inference against a party who fails to comply with disclosure obligations. 7. It is the Applicant’s case that under Order 16 Rules 1, 6 and 14 of the Civil Procedure Rules, the Court has jurisdiction to compel discovery, inspection and production of documents and to penalize non-compliance. 8. The Applicant therefore contends that unless the Court compels the Claimant to produce the requested documents, the Applicant will suffer grave prejudice in defending the suit, contrary to the constitutional right to a fair hearing guaranteed under Article 50(1) of the Constitution. **Claimant/Respondent’s Case** 1. In opposition to the application, the Claimant/Respondent filed a replying affidavit dated 3rd March 2026, sworn by David Seton, its Director and Head of Operations. 2. The Claimant/Respondent maintains the application is devoid of merit, baseless, frivolous, vexatious and an abuse of the Court process. 3. The Respondent avers that the alleged payslips for August, September and October 2023 were neither listed in the Respondent’s bundle of documents nor pleaded in the Defence and Counter-Claim and, therefore, the request to compel their production lacks any legal or factual basis and is prejudicial to the fair determination of the dispute. 4. The Respondent further states that the application is an afterthought since the original payslips for the months in question are in the custody and possession of the Applicant, who would have produced them had they been relevant to its case. 5. The Respondent asserts that the Claimant’s remuneration is clearly set out in the employment contract, which has been produced and corroborated by various payslips already on record and whose contents have not been disputed. 6. The Respondent contends that he is not aware of any document known as a mileage (statutory miles) report and does not have such documents in his possession, custody or control. 7. It is the Respondent’s case that a request for discovery must be precise, concise and unambiguous, whereas the present request seeks documents that are non-existent in law or fact and are not in his custody. 8. The Respondent states that the request for production of a mileage (statutory miles) report for August 2023 has no basis in the pleadings as there is no claim for mileage payment for that month. 9. He asserts that the request for mileage reports for August, September and October 2023 is an afterthought, unsupported by the pleadings, and that the documents sought were neither listed nor intended to be relied upon in his case. 10. It is the Respondent’s case that no factual foundation has been laid in the Defence and Counter-Claim to warrant an order compelling production of the alleged mileage reports, rendering the orders sought incapable of implementation. 11. The Respondent further contends that the application amounts to a fishing expedition for irrelevant and uncorroborated evidence. 12. He states that any notice to produce or application for discovery must be founded on the pleadings, which the Applicant has failed to demonstrate. 13. The Respondent further asserts that the reliance on the Civil Procedure Rules and the Evidence Act is misconceived, maintaining that the Employment and Labour Relations Court Act and the applicable Rules constitute a complete code governing proceeding before the Court. 14. The Respondent avers that the application is an afterthought because the Applicant did not previously indicate in its pleadings any intention to rely on the alleged mileage reports or payslips, nor raise any issue regarding their absence. 15. The Respondent states that the Claimant has already filed its response to the Defence and Defence to Counter-Claim and that production of the requested documents at this stage would introduce new issues, thereby prejudicing the Claimant who would be unable to substantively respond to them. 16. It is the Respondent’s case that the application is intended to delay the expeditious hearing and determination of the dispute, waste judicial time, and that the Applicant has failed to establish sufficient legal or evidential grounds to warrant the orders sought. **Respondent/Applicant’s Submissions** 1. The Respondent submitted on three issues: whether this Honourable Court has the jurisdiction to order discovery and production of documents; whether the documents sought are relevant and necessary for the fair determination of the dispute; whether the Claimant’s refusal or failure to produce the documents prejudices the Applicant’s right to a fair hearing; and who shall bear costs of the application 2. On the first issue, the Respondent submitted that this Court's jurisdiction to order discovery and production of documents is well grounded in both statute and procedural law, as discovery is an essential component of the civil justice system that facilitates disclosure of material evidence necessary for the fair and just determination of disputes. 3. It was submitted that the power of this Court to compel disclosure is expressly conferred under Rule 40 of the Employment and Labour Relations Court Procedure (Amendment) Rules, 2025. This Rule was enacted specifically to facilitate discovery and disclosure, rendering untenable the Claimant's assertion that discovery is misconceived or outside the Court's jurisdiction. 4. The Applicant further submitted that Rule 42 of the said Rules empowers the Court to issue appropriate directions and sanctions where a party fails to comply with discovery obligations, and that Sections 69 and 70 of the Evidence Act entitle a party to require production of documents by Notice to Produce, and to rely on secondary evidence where such notice is not complied with. 5. It was argued that, beyond these statutory provisions, the Court retains inherent power under Section 3A of the Civil Procedure Act to make orders necessary for the ends of justice, within which the power to compel production of documents falls. Reliance was placed on [***Kcb Bank Kenya Limited v Gillys Security & Investigations Limited & 2 others [2026] KEHC 682 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/682/eng%402026-01-23), where the Court stated that *"Discovery is intended to ensure that parties go to trial on an equal footing and that the Court has the benefit of all material necessary for the fair and just determination of a dispute."* 6. Relying on [***ABN Amro Bank N.V v Kenya Pipeline Company Limited [2019] KECA 499 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keca/2019/499/eng%402019-07-19),the Applicant submitted that the power to order discovery and production of documents is firmly anchored in statute and exists to assist both the parties and the Court in arriving at the truth. 7. It is the Applicant’s submission that where a party seeks the production of documents that are relevant to the issues in dispute and are reasonably believed to be within the possession, custody or control of the opposing party, this Court is properly vested with the jurisdiction and discretion to order their production 8. On the second issue, the Applicant submitted that the documents sought, the Respondent's pay slips and mileage reports, related directly to his remuneration and work-related entitlements for August, September and October 2023. 9. It was argued that although the Claimant denied knowledge of a document titled "Mileage Report," these records consist of Aircraft Technical Logs and Flight Records, which the Claimant is mandated to maintain under Section 74 of the Employment Act and Civil Aviation Regulations. These logs are the primary source for the 'statute miles' which the Claimant admits in its witness statement are used to compute the Applicant's commissions. Consequently, the data is not non-existent; it is a statutory record in the Claimant's exclusive custody. 10. The Applicant submitted that Sections 10 and 74 of the Employment Act place a mandatory duty on every employer to maintain records of remuneration and performance-related data for a minimum of five years. Further, Section 10(7) provides that failure to produce written employment records shifts the burden of proving or disproving an alleged term of employment to the employer. 11. He submitted that the Claimant's argument that the documents were not listed in the Respondent's bundle misconceived the purpose of discovery, which exists precisely to obtain official and original versions of documents held by the opposing party. The Claimant, as legal custodian under Section 10 of the Act, was required to produce the official records to verify authenticity and resolve discrepancies concerning gross monthly pay and statutory deductions. 12. Relying on [***Kcb Bank Kenya Limited v Gillys Security & Investigations Limited & 2 others [2026] KEHC 682 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/682/eng%402026-01-23), that discovery is not meant to facilitate speculative or fishing expeditions; however, where the documents sought are clearly identified and directly connected to the issues in dispute, the Court ought to allow their production to facilitate a fair determination of the matter. In the instant suit, the documents sought are clearly identifiable, directly connected to the Respondent’s remuneration and mileage compensation, and are necessary to enable this Court determine the real issues in dispute between the parties. 13. On the third issue, the Applicant submitted that the Claimant's refusal to produce the requested documents substantially undermined his ability to prepare and present his case. Article 50(1) of the Constitution guarantees every litigant a fair hearing, necessarily including access to relevant evidence, and that Article 35(1)(b) provides for the right to access information held by another person where required for the protection of a right or fundamental freedom. 14. It is the Applicant’s submission that a fair hearing cannot be achieved where one party withholds documents central to the dispute, and that courts are entitled to draw adverse inferences against a party who fails to produce documents within its custody, as provided under Rule 42 of the Employment and Labour Relations Court Procedure (Amendment) Rules, 2025. 15. It was submitted that, by operation of Section 10(7) of the Employment Act, the Claimant's continued refusal to produce the records should lead the Court to draw an adverse inference that the records, if produced, would support the Applicant's Counter-claim for unpaid dues. 16. Relying on [***Aluochier v Senate & 2 others [2025] KESC 59 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/kesc/2025/59/eng%402025-10-03), wherein the Supreme Court noted that information required for the exercise or protection of a right must be shared by its custodian in a manner recognized under the law. He argued that the Claimant, as the custodian of employment data, has a constitutional and statutory obligation to ensure the 'course of administration of justice remains clear. 17. On costs, it was submitted that the settled principle that costs follow the event under Section 27(1) of the Civil Procedure Act and [***Cecilia Karuru Ngayu v Barclays Bank of Kenya & another [2016] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2016/7064/eng%402016-02-08), that the costs of the Application be borne by the Claimant/Respondent. **Claimant/Respondent’s Submissions** 1. The Claimant/Respondent submitted that the present application seeking to compel discovery of the Applicant's Mileage (statutory miles) reports and pay slips for August, September and October 2023 is baseless, vexatious, devoid of merit and an abuse of the court process, being an afterthought and a fishing expedition intended to delay the expeditious hearing of the main Claim. 2. The Respondent submitted that the Application is equally prejudicial to the just determination of the main suit, as the documents sought have neither been listed in the Applicant's List and Bundle of Documents nor pleaded in his Defence and Counterclaim dated 11th August 2025, rendering them extraneous and irrelevant. 3. On whether the Claimant should be compelled to produce the documents, the Respondent avers that while this Court is vested with discretionary power under Rule 42(1) of the Employment and Labour Relations Court (Procedure) (Amendment) Rules 2025 to order discovery, that power is neither automatic nor unfettered and must be exercised within settled principles. 4. The Claimant/Respondent submitted that [***ABN Amro Bank N.V v Kenya Pipeline Company Limited [2014] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2014/8701/eng%402014-09-30), set the test that must be met before orders of discovery as follows: *“……such application seeking information and documents is measured on a new yardstick; the Applicant must; a) identify the information and or documents; and the person holding the information; and d) show that the information and or documents are required for the exercise or protection of a right or fundamental freedom. The latter enjoins the Applicant to show the information is relevant and necessary to determination of the suit. This constitutional test must be met before orders of discovery are issued.”* 5. Relying on ***Concord Insurance Co Limited Vs Nic Bank Limited Nairobi, High Court case 175 of 2011 [2013] eKLR***, the Claimant/Respondent submitted that a notice for discovery or production of documents must be founded upon the pleadings and the issues arising therefrom. 6. It is the Respondent’s submission that the Applicant has not met this threshold, having failed to establish that the documents are in the Respondent's possession or that discovery is founded on the pleaded issues, and asserts that no documents known as "Mileage (statutory miles) reports" exist within its possession or records. Reliance is placed on [***Imperial Bank Kenya Limited (Under Receivership) v Janco Investments Limited & 10 others [2019] KEHC 12274 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2019/12274/eng%402019-04-26):- *“****Rafiki Micro Finance Bank Ltd –Vs- Zenith Pharmaceuticals Ltd [2016] eKLR*** *Hon Justice Kariuki stated as follows:- “…………I also find that the Defendant has the onus of proving that the Plaintiff is in possession of the documents sought. Since the defendant has not offered any rebuttal to the above statement it is my opinion that the court cannot compel the Plaintiff to produce any material or document that is not in its possession.”* 7. The Respondent further submitted that the Applicant's attempt to equate Aircraft Technical Logs and Flight Records with Mileage Reports is misconceived, asserting that such logs are operational aviation records maintained under the Civil Aviation (Amendment) Act 2024 and applicable Civil Aviation Regulations for safety and technical compliance purposes, and are neither synonymous with nor convertible into the Mileage Reports sought. 8. It is the Respondent's submission that the Applicant has not established the relevance or necessity of the documents to the pleaded issues. 9. On the legal foundation of the application, the Respondent submitted that proceedings before this Court are governed principally by the specialised framework under the Employment and Labour Relations Court (Amendment) Act 2020 and Rules made thereunder, and that the Applicant's reliance on the Evidence Act and Civil Procedure Rules cannot enlarge the specific threshold under Rules 40 and 42 of the 2025 Rules. 10. The Respondent further submitted that Sections 10(7) and 74 of the Employment Act, though obligating an employer to maintain employment records, do not create automatic entitlement to unrestricted access to all internal or operational records. Section 10(7) merely addresses the evidentiary burden where employment records relating to a contract of employment are not produced. 11. It was submitted that [***Kcb Bank Kenya Limited v Gillys Security & Investigations Limited & 2 others [2026] KEHC 682 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/682/eng%402026-01-23), relied upon by the Applicant, is distinguishable, as the documents in that case were pleaded, shown to exist, and directly related to the pleaded transactions, unlike the Mileage reports here which have neither been pleaded nor shown to exist. 12. On necessity of the document sought for fair determination, the Respondent submitted that the documents sought are neither relevant nor necessary, relying on [***ABN Amro Bank N.V v Kenya Pipeline Company Limited [2014] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2014/8701/eng%402014-09-30). 13. It submitted that the documents sought do not have a direct bearing on the matters in contention in the main suit as particularized in the Memorandum of Claim, neither have the said documents been pleaded or particularized in the Applicant’s Defence and Counterclaim, thus rendering the documents sought extraneous, irrelevant and outside the scope of the pleadings before this Court. 14. The Respondent submitted that the Application is prejudicial to the just and fair determination of the issues raised in the main suit as-the said documents even if they were in existence, would raise new issues which will prejudice the Claimant who cannot substantively reply to such issues at this stage of the proceedings. 15. It is the Respondent’s submission that the Applicant has also not demonstrated that the said Mileage reports constitute statutory employment records contemplated under Sections 10 or 74 of the Employment Act which sections in any event also do not create an automatic entitlement to unrestricted access to all operational or internal records of an employer. Section 10(7) of the Employment Act merely addresses evidentiary burden where prescribed employment records are not produced. 16. On fair hearing, the Respondent submitted that it has not refused to produce the documents sought as it cannot reasonably be expected to produce that which is not in its custody. It argued that it is the Applicant who has prejudiced the Respondent’s right to a fair hearing by intentionally delaying hearing of the main suit through its present application which is a fishing expedition intended to waste this Court’s time and delay the hearing and determination of the main Claim by seeking production of documents that the Respondent is a stranger to. 17. It is the Respondent’s submission that the Applicant’s reliance on Articles 35 and 50 of the Constitution is misplaced, as these provisions cannot be invoked to circumvent established procedural and evidentiary principles governing discovery, and asserts that the Applicant, having already filed a Defence, Counterclaim together with a list and Bundle of Documents which demonstrates his possession of sufficient evidence to prosecute his case, has failed to demonstrate actual prejudice. 18. On sanctions and adverse inference, the Respondent submitted that the prayer is premature, speculative and devoid of legal basis, as an adverse inference cannot issue absent proof of the existence of the documents, their possession by the Respondent, and deliberate withholding. It cited [***Delta International FZE & 2 others v Rao & another [2025] KEHC 19618 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19618/eng%402025-12-18)for the principle that an adverse inference may be drawn only where evidence is shown to be in a party's possession and withheld, which the Respondent contends has not been established here, sanctions being discretionary remedies reserved for clear and exceptional circumstances of deliberate non-disclosure or bad faith. 19. On costs, the Respondent submitted that the application, being frivolous, vexatious and a fishing expedition intended to waste the Court's time, warrants costs against the Applicant. 20. It is the Respondent’s submission that it will be greatly prejudiced if the orders sought are granted given the main suit is already certified ready for hearing. 21. I have examined all averments and submissions of the parties. At the centre of this application is the prayer for production of certain documents. The jurisdiction of this court to order such production is anchored on rule 40 and 42 of the ELRC (procedure) amendment rules 2025 cited herein which allow discovery and grant power to the court to order production as the case may be. 22. The applicant have exercised that right to seek for 2 sets of documents. The 1st set of the documents are some reports and the 2nd are pay slips of the claimant. 23. In the documents before court the claimant submitted his payslip for August 2023 but the ones of September and October 2023 have not been provided. It is indeed the duty of the respondent to provide a pay slip to its employee as provided for under section 20 of the Employment Act 2007 which states as follows: **(1) An employer shall give, a written statement to an employee at or before the time at which any payment of wages or salary is made to the employee.** **(2) The statement specified in subsection (1) shall contain particulars of—** **(a) the gross amount of the wages or salary of the employee;** **(b) the amounts of any variable and subject to section** [**22**](https://new.kenyalaw.org/akn/ke/act/2007/11/eng%402024-04-26#part_IV__sec_22)**, any statutory deductions from that gross amount and the purposes for which they are made; and** **(c) where different parts of the net amount are paid in different ways, the amount and method of payment of each part-paymen**t. 1. The law also provides that the employer is expected to keep employee records and to produce them when required under section 74 of the employment act. The documents to be kept include documents in relation to payment of wages which the issue of payslips fall under. 2. It is indeed the duty of the respondent applicant to keep the documents they are asking the claimant to provide. This is indeed going beyond what is expected of the claimant unless a basis to the same is established. In the circumstances, I do not find any merit in the application and I dismiss it accordingly. Costs will be in the cause. **Dated, Signed and Delivered virtually at Nairobi this 22nd Day of July 2026.** **HELLEN WASILWA** **JUDGE**