https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1739

Elpa & 212 others v Majani Mingi Group Companies Ltd & 4 others (Petition 18 of 2019) [2026] KEELRC 1739 (KLR) (19 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1739 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nakuru Petition 18 of 2019 AN Mwaure, J June 19, 2026 Between Ekiru Eligoi Elpa & 212 others Petitioner and Majani Mingi Group Companies Limited Respondent and Kenya Plantation & Agricultural Workers Union 1st Interested Party National Hospital Insurance Fund Board Of Management 2nd Interested Party National Social Security Fund Board Of Trustees 3rd Interested Party Commissioner of Domestic Taxes 4th Interested Party Ruling 1.The Petitioners/Applicant filed a Notice of Motion dated 9th February 2024 under Certificate of Urgency on the following orders that:1.Spent2.The Honourable court be pleased to order the Respondent to make available/produce to the court and to the Petitioners all the Petitioners employment records, including but not limited to the documents known as original employment card and wages, master roll, pay roll/copies of payslips and salary vouchers for the Petitioners entire working period.3.The Honourable court do issue orders directing the County Labour officer to inspect and examine the documents/records mentioned in (2) above, prepare a report and file it in court with regards to;a.Whether or not the Respondent kept proper employment records for the Petitioners.b.Whether all the Petitioners were issued with employment letters/contracts at the time of employment and termination of employment.c.Whether the Respondent provided safety gears/apparels for all the Petitioners.d.Based on the employment payment records, how much was each petitioner entitled to as salary, underpayment, overtime, leave, service, house allowance, transport allowance, and how much were they actually paid, if at all.e.Whether, based on the employment records, the payments to the 2nd, 3rd and 4th interested parties were remitted.4.The Honourable court issue any others it may deem fit for the ends of justice to be met…….” Petitioners/Applicants’ case 2.The application is supported by the affidavit of Samwuel Mitee, the 98th Petitioner, sworn on even date as the application. 3.The Petitioners/Applicant aver that they are seeking orders from this Honourable Court compelling the Respondent to produce all employment records relating to the Petitioners, including original employment cards, wages records, master rolls, payrolls, payslips, and salary vouchers covering their entire period of service. 4.The Petitioners/Applicant further aver that the County Labour Officer be directed to inspect and examine these records, prepare a report, and file it in court addressing whether the Respondent maintained proper employment records; whether the Petitioners were issued employment and termination letters/contracts; whether safety gear and protective apparel were provided; the extent of salary entitlements, underpayments, overtime, leave, and allowances compared to actual payments; and whether remittances to the 2nd, 3rd, and 4th Interested Parties were duly made. Respondent’s replying affidavit 5.The Respondent opposed the application vide a replying affidavit sworn by Florence Sirma, the Respondent’s Human Resource Manager, dated 7th November 2025. 6.The Respondent avers that the petition is vexatious, incompetent, misconceived, and an abuse of the court process, as the orders sought are not only unnecessary but also incapable of being complied with. 7.The Respondent avers that it has already provided all employment records for legitimate petitioners, but the additional persons joined later are strangers who were never employees, hence no records exist for them. 8.The Respondent argues that compelling the Respondent to produce documents for non‑employees would amount to manufacturing evidence, contrary to the law. 9.The Respondent emphasizes that the burden of proof lies with the Petitioners to establish an employment relationship, which they have failed to do, and criticizes the attempt to frame the matter as a constitutional claim to avoid evidentiary burdens. 10.The Respondent maintains it has acted in good faith, disclosed all relevant records, and that the application unfairly shifts the evidential burden. 11.The Respondent concluded that the orders sought are impossible, unnecessary, and would only delay justice, urging the court to dismiss the application with costs. Petitioners/Applicant’s supplementary affidavit 12.The Petitioners/Applicants rebutted the Respondent’s replying affidavit vide a supplementary affidavit dated 25th November 2025. 13.The Petitioners/Applicants aver that the Respondent has selectively produced incomplete records, while withholding crucial employment documents such as contracts, payrolls, payslips, statutory deduction records, and master rolls. 14.The Petitioners/Applicants aver that they provide examples of petitioners whose employment records are missing or inconsistent, arguing that this concealment undermines their claims of underpayment, non‑remittance of statutory deductions, and unfair termination. 15.The Petitioners/Applicant gave examples such as Samwel Mitee Tuwee (98th petitioner), who worked since 1978 but has no employment or termination letters; James Olutola Omuyiyi (120th petitioner), employed in 2005 and terminated in 2019 without proper documentation; Omari Rajab Liberia (123rd petitioner), whose employment records are inconsistent and termination letters are missing; and Ruth Tamnyabie Tumbo (3rd petitioner), who never had a contract but received conflicting retirement letters. 16.The Petitioners/Applicants argue that this concealment supports claims of underpayment, non‑remittance of statutory deductions, and unfair employment practices. 17.The Petitioners/Applicants urge the court to compel the Labour Officer to independently inspect the Respondent’s premises and records, arguing that only such an audit can uncover the truth. 18.Parties canvassed the application by way of written submissions. Petitioners/Applicants’ written submissions 19.The Petitioners/Applicants submitted that the Respondent has breached its statutory duty under sections 9, 10, and 74 of the Employment Act by failing to maintain and produce complete employment records such as contracts, payrolls, payslips, master rolls, and statutory deduction records. The Petitioners/Applicants emphasized that the law uses mandatory language “shall”, imposing a positive obligation on employers to prepare and retain accurate records, with section 10(7) of the Employment Act creating a reverse evidentiary burden where records are missing. The Petitioners/Applicants cite examples of missing documentation for Samwel Mitee Tuwei (98th Petitioner), James Olutola Omuyiyi (120th Petitioner), Omari Rajab Liberia (123rd Petitioner), and Ruth Tamnyabie Tumbo (3rd Petitioner), arguing that the Respondent’s concealment undermines their claims of underpayment and non‑remittance of statutory deductions. 20.The Petitioners/Applicants relied on section 74(2) of the Employment Act and Section 35 of the Labour Institutions Act, which empower labour officers to inspect employment records, and urged the court to order such inspection. The Petitioner invoked to reinforce these principles set in the cases of Tailors & Textile Workers Union v Senior Best Garments (EPZ) Ltd [2013] KEELRC 383, where the court ordered inspection of records by a County Labour Officer, and Richard Cheruiyot Sigei v Bliss Flora Farm Ltd [2018] KEELRC 1052, which affirmed the competence of labour officers to assist courts in clarifying employment records. 21.The Petitioners/Applicants contend that only an independent audit by a Labour Officer can resolve the evidentiary impasse, promote transparency, and uphold substantive justice as envisaged under Article 159(2)(d) of the Constitution. The Petitioners/Applicants, therefore, urge the court to exercise its discretion in the interests of fairness and allow the application as prayed. Respondent’s written submissions 22.The Respondent submitted that the application for production of documents is unmerited, citing judicial precedents that limit discovery to documents within a party’s possession and relevance to the dispute. In Teresia Wanjiru Mukamba v Radio Africa Limited [2021] KEELRC 979 (KLR), the court declined to compel production of NSSF and NHIF lists, noting that such disclosure would infringe other employees’ rights and that the claimant could verify deductions directly with the institutions. Similarly, in Mutashi v Enterprises [2023] KEELRC 2471 (KLR), the court emphasized that employment disputes are proved on a balance of probabilities, finding the claimant failed to establish an employment relationship. In Kenya Pipeline Company Limited v Glencore Energy (U.K.) Limited [2015] KECA 835 (KLR), the Court of Appeal reinforced that production cannot be compelled where the existence of an employment contract is unproven, aligning with sections 107, 108, and 109 of the Evidence Act on the burden of proof. 23.The Respondent submitted that it has already fulfilled its duty by producing employment records for recognized former employees and that compelling further production for unidentified or unproven petitioners would improperly shift the burden of proof. The Respondent relied on Mutashi v Enterprises(supra) to affirm that an employment relationship must first be established before statutory protections apply. The petitioners’ request for NSSF, NHIF, and KRA records is opposed on privacy grounds under Article 31 of the Constitution, supported by Okoiti v Communication Authority of Kenya & 3 others; Orange Telkom Kenya & 4 others [2018] KEHC 7513 (KLR), which protects against unauthorised disclosure of personal data. The Respondent emphasized that petitioners can obtain their own records directly from the relevant institutions, and discovery should not be ordered where information is readily available elsewhere. 24.Finally, the Respondent also relied on Mohamed Guyo Boru v Richard Mwilaria Aritho [2022] KEHC 2229 (KLR), which reiterates sections 107, 108, and 109 of the Evidence Act, underscoring that the burden of proof lies with the party asserting the existence of facts. 25.In light of the foregoing, the Respondent urged the court to dismiss the application. Analysis and determination 26.The court has considered the application, supporting affidavit, responses thereto, supplementary affidavit and the rival submissions; the issue for determination is whether the Respondent should be ordered or produce employment documents of the Petitioners. 27.Section 74 of the Employment Act provides that employers must maintain comprehensive written records for all employees under contract. These records must include key particulars such as policy statements, contract details, disciplinary records, weekly rest days, annual leave, maternity and sick leave, housing and allowances, food rations, and other statutory requirements. Employers must also permit authorized officers to inspect these records for up to thirty‑six months prior. Where children are employed, compliance is achieved if the employer maintains a register under section 61 of the said Act containing the required particulars. 28.Section 35(1)(a) to (g) of the Labour Institutions Act empowers a Labour Officer to enter workplaces and demand inspection of employment records. These powers are designed to monitor compliance with minimum working conditions and to enforce labour laws, thereby ensuring that employers uphold statutory standards and protect employees’ rights. 29.In Transport Workers Union (K) v Kimilili Hauliers Limited [2015] KEELRC 97 (KLR) Radido J (as he was then), where the court had directed the County Labour Officer to examine and inspect the Respondent’s employment records. In doing so, the Court invoked the Labour Officer’s extensive statutory powers under the Labour Institutions Act, 2007, which authorize such inspections and audits to ensure compliance with employment laws and to provide the court with an independent, objective report. This underscores the court’s commitment to transparency and accountability in resolving employment disputes. 30.In Tailors & Textile Workers Union v Senior Best Garments (EPZ) Ltd(supra), the court affirmed that Section 35 of the Labour Institutions Act empowers Labour Officers to inspect and examine employment records to ensure compliance with labour standards. This mandate is reinforced by sections 10 and 74 of the Employment Act, 2007, which obligate employers to maintain detailed employment records and permit authorized officers to inspect them. Together, these provisions create a comprehensive framework for monitoring workplace practices and enforcing labour laws. Applying these principles, the Court directed the County Labour Officer to inspect and examine the Respondent’s employment records for the two Grievants, covering the period from March 2008 to October 2010, and to prepare and file a report within twenty‑one days detailing any outstanding leave, overtime worked and paid, house allowance arrears, and underpayments. 31.In this instant case, the Petitioners/Applicants aver that they are seeking orders from this Honourable Court compelling the Respondent to produce all employment records relating to them, including original employment cards, wages records, master rolls, payrolls, payslips, and salary vouchers covering their entire period of service. They further request that the County Labour Officer be directed to inspect and examine these records, prepare a report, and file it in court addressing whether the Respondent maintained proper employment records; whether employment and termination letters/contracts were issued; whether safety gear and protective apparel were provided; the extent of salary entitlements, underpayments, overtime, leave, and allowances compared to actual payments; and whether remittances to the 2nd, 3rd, and 4th Interested Parties were duly made. The Respondent, however, contends that it has already discharged its duty by producing employment records for recognized former employees, and argues that compelling further production for unidentified or unproven petitioners would improperly shift the burden of proof. 32.The Respondent is the statutory custodian of employment records. As already stated, the employer is the custodian of the employees’ documents as far as they are relating to their employment. 33.The court is however getting weary of the Petitioners numerous applications to amend the petition.It would appear from the court records that the case was filed on 7th October 2019. Since then the Petitioners have made applications for amendments about 3 times until the court begins to wonder if the Petitioners have any of their records or have been trying to buy time. Since 2019 the case has not been heard. The last application for amendment of the Petition was filed in February 2024 and Ruling was delivered in March 2026. 34.The court is puzzled during all those years the Petitioners have not asked the Respondent to produce those documents. It might also be a tall order for the Respondents to get those documents considering the passage of time from 2019 todate. 35.The court in pursuit of availing justice to all the parties will make these orders: -a.Respondent as much as possible avail to the court and to the Petitioners the employment records including original employment cards and wages, master roll, pay roll/copies of payslips and salary vouchers.b.The court will not order the County Labour Office to go to inspect these documents as there is no evidence adduced to convince the court the relevance of involving the labour office.At least the Petitioners can avail whatever document in their custody to at least demonstrate they were employees of the Respondents. 36.The case should proceed for hearing the earliest in the new term and will be mentioned on 17th September, 2026. If the hearing has not commenced the court will dismiss the case. It is not right for a case to remain unheard for close to six years.Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 19TH DAY OF JUNE, 2026.ANNA NGIBUINI MWAUREJUDGEORDERIn 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 just, expeditious, proportionate and affordable resolution of civil disputes.A signed copy will be availed to each party upon payment of Court fees.ANNA NGIBUINI MWAUREJUDGE