[2024] KEELRC 830 (KLR)
The court held that documents marked 'without prejudice' are privileged and should not be admitted into evidence unless the privilege is expressly waived or the court grants leave for their admission. The court found that the correspondence in question was clearly marked 'without prejudice' and that no leave had...
Source-derived case information.
- Citation
- [2024] KEELRC 830 (KLR)
- Parties
- Applicant: Lynnet Nancy Kathure Gatobu; Respondent: Tullow Kenya Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause E964 of 2021
- Procedural Posture
- Cause / Ruling on Evidentiary Objection
- Outcome
- Objection upheld; privileged documents expunged from record.
- Judges
- Nzioki wa Makau
- Legal Topics
- Without Prejudice Communications, Admissibility of Evidence, Privilege in Employment Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lynnet Nancy Kathure Gatobu
Applicant
Tullow Kenya Limited
Respondent
Procedural Posture
Cause / Ruling on Evidentiary Objection
Legal Issues
- 1 Whether documents marked 'without prejudice' can be admitted as evidence in legal proceedings without leave of court.
- 2 Whether the respondent's inclusion of 'without prejudice' correspondence in the trial bundle is permissible.
Ratio Decidendi
The court held that documents marked 'without prejudice' are privileged and should not be admitted into evidence unless the privilege is expressly waived or the court grants leave for their admission. The court found that the correspondence in question was clearly marked 'without prejudice' and that no leave had been sought or granted to lift the privilege. The rationale for this rule is to promote candid settlement negotiations by protecting such communications from disclosure in litigation. Accordingly, the court agreed with the applicant's objection and ordered that the documents be expunged from the record. The respondent was directed to file a new bundle excluding the privileged...
Court Disposition
Objection upheld; privileged documents expunged from record.
Orders
- The documents at pages 60-63 of the respondent's bundle, marked 'without prejudice', are expunged from the court record.
- The respondent is to file a duly bound and paginated bundle of documents excluding the expunged correspondence.
Full Case Text
Judgment text and source record
20 paragraphs
Gatobu v Tullow Kenya Limited (Cause E964 of 2021) [2024] KEELRC 830 (KLR) (17 April 2024) (Ruling)
Neutral citation: [2024] KEELRC 830 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Nairobi
Cause E964 of 2021
Nzioki wa Makau, J
April 17, 2024
Between
Lynnet Nancy Kathure Gatobu
Claimant
and
Tullow Kenya Limited
Respondent
Ruling
1. Objection has been taken in respect to the documents at page 60-63 being correspondence which counsel for Claimant Ms. Chitechi asserts is marked “without prejudice”. She submits that the documents so marked are excluded from production in any legal proceedings. She submits that if a party seeking to rely on such, there be specific leave sought to lift the privilege that attaches to them.
2. Mr. Musyoka, Learned Counsel for the Respondent assets the documents were filed a while back and there was no objection. He asserts that. It is common ground there was an attempt at mutual separation which collapsed, the essence of the letter was to demonstrate the attempt. He thus urges the court to disallow the objection.
3. Ms. Chitechi learned counsel for Claimant in a brief reply asserts that it is standard procedure that any document marked “without prejudice” should not be a subject of discussion in any legal proceedings. She submits that a party can object at any time to such a document as there is no preclusion to making an objection to such a document. She thus urges the documents to be expunged.
4. The provenance of “without prejudice” communication is that a document so marked is to be precluded from any legal proceedings. It is clear the documents at page 60 – 63 of the Respondents bundles are so marked. It is noted that in certain circumstances, a party can seek dispensation to avail and rely on documents marked “without prejudice”. The caveat against using privileged communication which is what “without prejudice” means, is one that is used to allow parties to negotiate freely and without the fear of their offer being subjected to the rigors of legal proceedings. The Court is thus inclined to agree with the Claimant’s counsel that the privilege attaching to the documents eliminates the content from the eyes of the Court. Granted the court will have to adduce the case on the basis of the evidence before it, it follows that these two letters must be expunged from the court record. Consequently, the Respondent will have to file a duly bound and paginated bundle of documents excluding these from the trial bundle. It is hoped the hearing can proceed to a degree, given the prevailing circumstances unless the parties are opposed.
It is so ordered.
DATED THIS 17THDAY OF APRIL 2024 AT NAIROBINZIOKI WA MAKAUJUDGE