[2018] KEELRC 1282 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT NAIROBI

CAUSE NO. 153 OF 2015

(Before Hon. Justice Hellen S. Wasilwa on 25th July, 2018)

DR. JOHN MURIITHI.............................................................1ST CLAIMANT

JACKSON AWUOR ................................................................2ND CLAIMANT

JOYCE ONYANGO ................................................................3RD CLAIMANT

JUDY OBURA .........................................................................4TH CLAIMANT

VERSUS

THE REGISTERED TRUSTEES OF

THE SISTERS OF MERCY (KENYA)

T/A “THE MATER MISERICORDIAE HOSPITAL”..RESPONDENT

CONSOLIDATED WITH CAUSE NO. 212 OF 2015

JAMES MUTISO KALOKI....................................................1ST CLAIMANT

SUSAN KAGENDO KARANJA ...........................................2ND CLAIMANT

JACKSON GUNJIRI GATHOGO ........................................3RD CLAIMANT

ALICE WAMBUI NJAMBI....................................................4TH CLAIMANT

CONSOLIDATED WITH CAUSE NO. 241 OF 2015

LAWRENCE GICAGA MUIGA ...................................................CLAIMANT

VERSUS

THE BOARD OF TRUSTEES

THE MATTER HOSPITAL.......................................................RESPONDENT

RULING

1. The Application before me is the 1st Respondent’s Objection to the 2nd, 3rd and 4th Claimants’ Amended Statement of Claimant dated 23. 6.2017.

2. The Respondent/Applicant objects to the said Amended Statement of Claim stating that it cannot be a substitute in law for the requisite Reply and Response the said Claimants have filed to the Respondent’s Amended Statement of Response and Count-Claim dated 10. 5.2017.

3. He avers that the Amendment of the Statement of Response and inclusion of the Counter-Claim by the Respondents with leave of the Court gave only a corresponding right to the Claimants to make consequential amendments to their Statement of Claim.

4. The Respondents have submitted that the Amendments have altered and submitted the case of action on the basis of which their original Claim was raised which is not allowable in law.

5. The Respondent submit that the amendments violate the orders of this Court made on 25/2/2015 and 25/3/2015 that Cause No. 212 and 241 be consolidated under Cause No. 153/2015.

6. The Respondents therefore aver that the Amended Statement of Claim by the Claimants dated 23/6/2017 is prejudicial to them and enlarges the claim and issues for trial and enhances costs of which they therefore pray should be struck off.

7. The 2nd to 4th Claimant filed Grounds of Opposition to the Respondent’s Notice of Objection dated 15/1/2018. They aver that the Notice of Objection is not merited, is frivolous, vexation and is brought malafides. They aver that it does not meet the threshold.

8. The Claimants aver that the Notice of Objection is based on fundamentally flawed interpretation of the law of evidence including the clear provisions of the Rules of this Honourable Court on evidence. They also aver that the Evidence Act does not apply to proceedings before this Court and the Respondents’ Notice of Objection therefore has no basis in law.

9. The Claimants have submitted that the Notice of Objection calls for adding of evidence including evidence of alleged confidentiality of evidence and prejudice and can thus not be determined in the manner sought by the Respondents.

10. They aver that the evidence sought to be excluded is not coincidental and in any event the Respondents cannot hide behind the cloak of alleged illegality and confidentiality and exclude from the attention of this Court evidence that will enable the Honourable Court arrive at a fair and just determination of this matter.

11. The Claimant pray that the Notice of Objection dated 15/1/2018 be dismissed with costs

12. The 5th, 7th and 9th Claimants also opposed the Notice of Objection dated 15/1/2018 stating that it is not accompanied by an affidavit verifying the facts relied upon. They aver that the impugned documents are necessary to enable the Claimants to defend themselves and pursue their right to fair hearing and access to justice.

13. They aver that the Respondents have not demonstrated the injustice or prejudice or hardship it would suffer if the impugned documents are not expunged from the record. They submit that the Application is an abuse of the Court process and ought to be dismissed.

14. 1st Claimant too opposed the Respondent’s Notice of Objection terming it an abuse of the Court process.

15. The 1st Respondent filed their submissions where they aver that in their application dated 15/1/2018, they sought to have various documents expunged from the Claimant’s list of documents dated 23/6/2017 on various grounds. The documents are:-

1) Copies of minutes of the trustees’ crisis management meeting held at Provincial House, Vila Maria on 7th February 2015.

2) Copies of records of summary minutes of trustees of the Mater Hospital for 31. 1.2015 – 6th February 2015.

3) A Copy of a letter dated 26th February 2015 by Rina Hanrahan to Sr Anne Itotia.

4) Copy of a letter dated 19th January 2016 by the Congregation of the Sisters of Mercy to the Sisters of Mercy Kenyan Province.

5) The Notes on a meeting held at Villa Maria on 30th June 2014 for being unsigned and unapproved.

6) Copy of a statement dated 2. 12. 2016 made by Grace Onyango at CID Headquarters for not being relevant.

16. The Respondents aver that they want the stated documents expunged from the file for being illegally acquired as none of the 2nd to 4th Claimants attended the Trustees meetings. The Minutes of 7. 2.2015 and 6. 2.2015 were confirmed after their lock out and suspension from service. The Claimants could not have accessed or acquired the same lawfully in the course of their employment.

17. They aver that the two letters dated 26. 2.2015 and 19. 1.2016 are not addressed or copied to any of them and were written when the said Claimants were not serving the Respondents and so they could not have accessed or acquired copies of the impugned minutes and the two letters lawfully in the course of their employment.

18. The Respondents cited Leland I. Salano vs. Intercontinental Hotel (2013) eKLRIndustrial Court No. 805/2012 where Hon. J. Rika made a distinction between confidentiality and privacy stating confidentiality refers to treatment of information and intellectually with others and privacy is about persons.

19. He submitted that the Applicants maintained a confidentiality Policy which bound the Claimants as per their Employment Policy Section 5(3) at page 20 of the Respondents’ Handbook at page 116 of the 2nd to 4th Claimant’s copies of documents under the list of documents dated 23. 6.2017. This was also covered in Clause 10 of the 3rd Claimants’ contract of employment dated 18/12/2013 at page 102 of the aforesaid copies of the documents.

20. They asked Court to allow their application.

21. The Claimants in their submissions indicated that the documents were not illegally obtained and they cited Regina vs Leetham where the Court held that:-

“It matters not how you get it if you steal it even, it would be admissible in evidence”.

22. They also cited Nicholas Randa Owano Ombija vs Judges Vetting Board (2015) eKLR Nairobi court of Appeal Civil Appeal No. 281 of 2015 where the Court admitted the appellant’s replying affidavit despite the claim that its contents were illegally obtained.

23. I have examined all the averments of the parties. Evidence has broadly been defined as the means from which an inference may logically be drawn as to the existence of a fact, that which makes evident or plain (Blacks Law Dictionary Tenth Edition – Page 673). Illegally obtained evidence on the other hand is defined as evidence obtained by violating a statute or a person’s constitutional or other rights especially - the guarantee against unreasonable search and seizure (supra – page 676).

24. Generally speaking all evidence that tend to prove the occurrence or existence of an event or thing is admissible evidence. Such evidence is relevant save for what is called illegally obtained evidence.

25. Illegally obtained evidence is generally speaking not admissible in al criminal cases. This rule does not however apply to civil cases, see United States vs Alvarez 567 US 709 (2012) where the Supreme Court of the USA struck down the Stolen Valor Act, a Federal law that criminalized false statements and stated that the illegality of evidence does not apply in civil cases and where the rule applies, it is only used for purpose of proving the defendants’ guilt for the particular crime.

26. Under common law, the position of illegally obtained evidence is that evidence which is relevant to a fact in issue is relevant no matter how it was obtained. In Lloyd vs Mostyn 1842 10 M & W 478Chief Justice Goddard held that the test to be applied in considering whether evidence is admissible is whether is it relevant to the matters in issue. That if it is admissible, the Court is not concerned with how the evidence was obtained.

27. In R vs Sang (1979) 2 AER P1222 the House of Lords held that:-

“…….A Judge in criminal trial always has discretion to refuse to admit evidence if its prejudicial effect outweighs its probative value….. Except in the case of admissions, confessions and evidence obtained from an accused after the commission of an offence, a Judge has no discretion to refuse to admit relevant admissible evidence merely because it had been obtained by improper and unfair means…….”.

28. In Kenya, illegally obtained evidence is admissible so long as it is relevant to the fact in issue or its admission would not affect the fairness of the trial. This is the position at common law and which was upheld in Karuma S/O Kaniu vs R. Article 50(4) of the Kenyan Constitution 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”.

29. In the current case, there is no indication that the evidence sought to be excluded by the Applicants was obtained in a manner that violates the right or fundamental freedom in the Bill of Rights. The same evidence would also not render the trial unfair or be detrimental to the administration of justice.

30. In determining whether to allow evidence being sought to be expunged, I am guided by the fact that the primary duty of this Court is to do justice. If justice will be done using available documents and evidence not obtained in breach of the Constitution and the law then this Court would admit such evidence in order to have the right resources before it to enable determination of the issues in a just matter. I therefore exercise my discretion and dismiss the application and allow the documents filed to remain on record.

31. Costs to be in the cause.

Dated and delivered in open Court this 25th day of July, 2018.

HON. LADY JUSTICE HELLEN WASILWA

JUDGE

In the presence of:

Mbugua for Respondent – Present

Claimants – Absent