https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1760

Gicheru v Kenya National Spelling Bee Ltd & another (Employment and Labour Relations Cause E235 of 2025) [2026] KEELRC 1760 (KLR) (26 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1760 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Employment and Labour Relations Cause E235 of 2025 BOM Manani, J June 26, 2026 Between Kevin Ngome Gicheru Claimant and Kenya National Spelling Bee Limited 1st Respondent Sai Office Supplies Limited 2nd Respondent Ruling Background 1.The application which is the subject of this ruling is dated 16th July 2025. It was filed by the Respondents pursuant to articles 28, 31 and 50 (4) of the Constitution seeking the following orders:-a.That the audio recordings of 12th August 2024, 22nd August 2024 and 25th September 2024 appearing as items 12, 13 and 14 in the Claimant’s list and bundle of documents dated 24th March 2025 be expunged from the court record.b.That the transcripts from the recordings of 12th August 2024, 22nd August 2024 and 25th September 2024 appearing as items 15, 16 and 17 in the Claimant’s list and bundle of documents dated 24th March 2025 be expunged from the court record.c.That the Claimant be condemned to bear the costs of the application. 2.The application is anchored on the grounds on the face thereof. It is also supported by the affidavits and further affidavit of Anand Dave and Grace Wanjiru sworn on 2nd July 2025 and 21st October 2025 respectively. 3.The affiants contend that the Claimant recorded the meetings of 12th August 2024, 22nd August 2024 and 25th September 2024 between them (the affiants and the Claimant) without their consent. They assert that the Claimant’s actions were illegal and a violation of their rights to privacy. 4.The affiants aver that the meetings in question were for discussing ordinary work related matters. They assert that they did not expect that the Claimant would secretly record the proceedings. 5.The affiants assert that the Claimant’s actions were intended to entrap them into giving certain responses to cushion his case. It is their contention that such conduct should not be encouraged as it will discourage free communication at the workplace. 6.The affiants dispute the Claimant’s contention that he requested for the meetings to be documented to no avail. As a matter of fact, they contend that the minutes of the meeting of 22nd August 2024 were shared with the Claimant and he acknowledged receipt thereof. 7.The Claimant has opposed the application. He filed a replying affidavit dated 17th September 2025 to anchor his response. 8.The Claimant contends that he was the Managing Director of the 1st Respondent. He further asserts that he was the Head of Business Development for the 2nd Respondent. 9.The Claimant asserts that the impugned recordings were procured lawfully in accordance with the applicable law. He contends that the law recognizes recordings by a participant in a meetingas legitimate. He contends that the only condition precedent for the validity of such recordings is that they must be recorded by the participant whilst he is present at the time of the session. 10.The Claimant avers that he requested the Respondents’ management to document the meetings from which the recordings were done but to no avail. He thus contends that the Respondents cannot turn around to allege that the recordings were secretive when they were aware of his demand that the proceedings be documented. 11.The Claimant asserts that the Respondents were under obligation by virtue of section 74 of the Employment Act to maintain a record of his employment which, in his view, includes a record of the impugned meetings between the parties. He contends that this data is critical in probing the propriety of the Respondents’ actions. 12.The Claimant avers that the refusal by the Respondents’ management to record the proceedings of the separation meetings between the parties left him with little choice but to record the sessions by himself. He contends that he took the decision to document the sessions because he knew that the results of the meetings may adversely affect his rights and hence the need to have an accurate record of the sessions. 13.The Claimant contends that the recordings are necessary to demonstrate that the parties had meetings to discuss his separation with the 1st Respondent. He avers that this is a central issue in the dispute between the parties. 14.The Claimant contends that failure by a participant in a meeting to expressly secure the consent of the other participants to record the session does not automatically render the recordings of the session inadmissible in evidence. He contends that such recordings can only be declared inadmissible if the party objecting to their production demonstrates the prejudice he will suffer if the evidence is admitted and if he shows that admission of the evidence will be detrimental to the administration of justice. 15.The Claimant asserts that the Respondents have not spoken to the two tests for rejection of the evidence in their affidavits in support of the application. Further, he contends that the Respondents’ officers cannot assert that production of the evidence will infringe their right to privacy since the recordings relate to meetings in which he was an active participant. He contends that the discussions at the meetings were not classified as private to entitle the Respondents to allege breach of their right to privacy. 16.The Claimant contends that the Respondents’ request is, in any event, premature as it ought to be presented during trial. He avers that it is only at this stage of proceedings that the court is entitled to consider the question of admissibility of evidence. 17.The Claimant contends that the instant application is nothing but an attempt to suppress legitimate evidence. It is his case that the recordings are critical in assisting the court to weigh the merits of the claim. Analysis 18.The issue which the court is invited to determine in the application is whether the recordings by the Claimant of the meetings held on 12th and 22nd August 2024 and 25th September 2024 between him and the Respondents’ officers and the transcripts therefrom should be excluded from the proposed evidence in support of his case. According to the Respondents, the recordings and transcripts should be expunged from the court record because they were documented without the officers’ knowledge and consent in violation of their right to privacy. On the other hand, the Claimant contends that the recordings and transcripts relate to meetings in which he was an active participant and are thus legitimate. 19.The constitutional provisions under which the application is brought only recognize and entrench the rights to: human dignity; privacy; and fair hearing. They (the provisions) do not make provision for the procedure to enforce the rights. One has to look at the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules for the mechanism for protection of the rights. Nevertheless, I will consider the application on its merits. 20.As mentioned earlier, the Respondents’ contention is that the manner in which the impugned recordings were done infringed their officers’ right to privacy. As such, they invoke the exclusion clause under article 50 (4) of the Constitution to pray that the evidence be excluded from the trial. The provision states as follows:-‘’Evidence obtained in a manner that violates any right or fundamental freedom in the Bill of Rights shall be excluded if the admission of that evidence would render the trial unfair, or would otherwise be detrimental to the administration of justice.’’ 21.The import of this provision has been considered in a number of judicial pronouncements. In Njenga v Dib Bank Kenya Limited [2023] KEELRC 1549 (KLR) for instance, the court observed that the provision does not automatically render evidence which is obtained irregularly inadmissible. The court observed that for such evidence to be excluded from a trial, the party seeking its (the evidence) exclusion ought to demonstrate that admission of the evidence would render the trial process unfair or would otherwise be detrimental to the administration of justice. A similar position was expressed in the case of David Ogolla Okoth v Chief Magistrate Court, Kibera & 2 others [2016] eKLR. 22.In the case of Okiya Omtatah Okoiti & 2 others v Attorney General & 4 others [2020] eKLR, the Court of Appeal expressed itself on the subject as follows:-‘’In our view, under Article 50(4) if a court determines that admission of evidence obtained in a manner that violates any right or fundamental freedom in the Bill of Rights would be detrimental to the administration of justice, the court may reject it irrespective of whether it is in connection with a civil or criminal trial.’’ 23.I understand the court to have been stating that for a court to exclude evidence which is irregularly procured under the aforesaid provision of the Constitution, it must satisfy itself that admission of the evidence will be detrimental to the administration of justice. Put differently, the aforesaid constitutional provision does not set up an automatic and absolute bar to admission of such evidence. 24.The aforesaid constitutional provision recognizes and seeks to mediate the tension between two public goods: that of ensuring that the administration of justice is not unduly hampered; and that of protecting constitutional rights. The court is called upon to find a working balance between these competing public goods. 25.In the instant case, the Respondents’ officers contend that recording the impugned meetings infringed their right to privacy. The court is called upon to examine whether the infringement alluded to was so grave as to require the impugned recordings to be excluded from evidence in order to ensure fairness of the trial process and the administration of justice. 26.The starting point is to acknowledge that the right to privacy under the Constitution is not absolute. It is susceptible to limitation as long as the limitations imposed on it (the right) are justifiable in an open and democratic society (see the Supreme Court decision in Chitembwe v Tribunal Appointed to Investigate into the Conduct of the Hon. Justice Said Juma Chitembwe, Judge of the High Court [2023] KESC 114 (KLR)). 27.The emerging jurisprudence on the subject appears to lean towards accommodating covertly recorded evidence if the recording was done by a participant in the proceedings which are recorded. Courts appear to have permitted limitations to the right to privacy in this regard in order to ensure that the administration of justice is not unduly hampered. 28.This appears to be the position which was adopted by the Supreme Court in the case of Chitembwe v Tribunal Appointed to Investigate into the Conduct of the Hon. Justice Said Juma Chitembwe, Judge of the High Court (supra). The court adopted the test for admissibility of secret recordings as established by the Tribunal to wit the following:-i.The recording must have been done by a participant in the conversation and not by a third party;ii.The recording was of a conversation between parties who were privy to the truth of the matter they were discussing and were freely talking about it;iii.The court or tribunal has direct evidence of the participant who made the recording; andiv.The recording is of great probative value. 29.Adopting these principles, the court stated as follows:-‘’Applying these principles to the instant case, we find just like the Tribunal did, that though the video and audio recordings were covertly recorded, they were recorded by participants in the conversations. Concerning the recordings of 9th and 10th July, 2021, the persons depicted in the recordings were at the petitioner’s residence with his permission, and the discussions therein, that flowed effortlessly were of interest both to the petitioner and his visitors. The recordings were made by parties who were privy to the transactions over Parcel nos 779 and 1222. Indeed, there is no claim that a third party was involved in the recordings that would render the recordings inadmissible…..…….Accordingly, we find that the audio and video recordings produced did not contravene the petitioner’s right to privacy under article 31. Additionally, we find that their admission into evidence did not render the inquiry before the Tribunal detrimental to the administration of justice in contravention of article 50(4) of the Constitution.’’ 30.In Kinyanjui v Scania East Africa Limited [2023] KEELRC 1627 (KLR), the court rejected a request to expunge covert recordings from evidence on the basis that the employee who did the recordings was a participant in and the subject of the recorded proceedings. 31.The Respondents have cited a number of decisions to support their contention that the impugned recordings should be excluded from evidence. However, the Supreme Court decision in Chitembwe v Tribunal Appointed to Investigate into the Conduct of the Hon. Justice Said Juma Chitembwe, Judge of the High Court (supra) appears to have settled the debate regarding admissibility of covert participant recordings into evidence. If this decision is anything to go by, such recordings are admissible in evidence as long as they meet the threshold that was set in the case. 32.In the instant case, there is no dispute that the Claimant was a participant in the meetings which he recorded. There is no dispute that he was the subject of the proceedings in the meetings. Although the Respondents assert that production of the recordings will prejudice their case, they do not cogently substantiate this claim. 33.Having regard to the foregoing and the cited case-law (particularly by the Supreme Court and which is binding on this court), I find that the impugned recordings and transcripts, having been recorded by a participant in the recorded meetings, were legitimately procured. As such, I decline the request to expunge them from the court record. Determination 34.The upshot is that the application dated 16th July 2025 fails. 35.Each party to bear own costs of the application. DATED, SIGNED AND DELIVERED ON THE 26TH DAY OF JUNE, 2026B. O. M. MANANIJUDGEIn the presence of:…………….for the Claimant…………….for the RespondentsOrderIn light of the directions issued on 12th July 2022 by her Ladyship, the Chief Justice with respect to online court proceedings, this decision has been delivered to the parties online with their consent, the parties having waived compliance with Rule 28 (3) of the ELRC Procedure Rules which requires that all judgments and rulings shall be dated, signed and delivered in the open court.