[2023] KEELRC 1902 (KLR)
The court found that the audio recordings were made secretly by the claimant during her employment without the respondent's knowledge, constituting an act of misconduct. Admitting such evidence would amount to sanitising the misconduct and infringe the respondent's right to privacy under article 31 of the...
Source-derived case information.
- Citation
- [2023] KEELRC 1902 (KLR)
- Parties
- Applicant: Nancy Wanjiku Kamau; Respondent: Del Monte Kenya Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1070 of 2018
- Procedural Posture
- Employment Cause / Ruling on Admissibility of Evidence
- Outcome
- Objection to admissibility of audio evidence upheld.
- Judges
- L Ndolo
- Legal Topics
- Unlawful Termination, Admissibility of Evidence, Right to Privacy
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nancy Wanjiku Kamau
Applicant
Del Monte Kenya Limited
Respondent
Procedural Posture
Employment Cause / Ruling on Admissibility of Evidence
Legal Issues
- 1 Whether the audio recordings produced by the claimant are admissible as evidence in light of constitutional protections.
- 2 Whether the evidence was obtained in violation of the respondent's right to privacy under article 31 of the Constitution.
- 3 Whether admitting the evidence would render the trial unfair or be detrimental to the administration of justice.
Ratio Decidendi
The court found that the audio recordings were made secretly by the claimant during her employment without the respondent's knowledge, constituting an act of misconduct. Admitting such evidence would amount to sanitising the misconduct and infringe the respondent's right to privacy under article 31 of the Constitution. The court held that evidence obtained in violation of constitutional rights is inadmissible if its admission would render the trial unfair or be detrimental to the administration of justice, as provided under article 50(4) of the Constitution. Consequently, the objection to the admissibility of the audio recordings was upheld.
Court Disposition
Objection to admissibility of audio evidence upheld.
Orders
- The respondent's objection dated October 3, 2022 is upheld with costs in the cause.
Full Case Text
Judgment text and source record
26 paragraphs
Kamau v Del Monte Kenya Limited (Cause 1070 of 2018) [2023] KEELRC 1902 (KLR) (27 July 2023) (Ruling)
Neutral citation: [2023] KEELRC 1902 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Nairobi
Cause 1070 of 2018
L Ndolo, J
July 27, 2023
Between
Nancy Wanjiku Kamau
Claimant
and
Del Monte Kenya Limited
Respondent
Ruling
1. By a memorandum of claim dated June 18, 2018, the claimant sued the respondent for unlawful termination of employment. The respondent filed a statement of response on August 7, 2018.
2. As part of her evidence, the claimant seeks to rely on electronic evidence in the form of compact disc rom (A) and compact disc rom (B) containing an audio recording of proceedings of an official meeting of the respondent.
3. By notice dated October 3, 2022, the respondent objected to production of this evidence on the ground that it was unlawfully obtained contrary to article 50(4) of the Constitution and is therefore inadmissible.
4. In response to the objection, the claimant filed a replying affidavit sworn on March 24, 2023. She terms the objection as an attempt to suppress evidence which would aid her case.
5. In pursuing its objection, the respondent relies on article 50(4) which provides as follows:4. 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.
6. The respondent submits that admission of the evidence in issue would amount to infringement of its right to privacy guaranteed under article 31 of the Constitution.
7. In its written submissions, the respondent relied on the decision in Shakunt Rajnikant Shah v Bhupendara Motichand Shah t/a John Cumming & Company & another [2021] eKLR where Ochieng J (as he then was) upheld the protection of private data.
8. The claimant herself depones that the evidence in issue consists of an audio recording of the respondent’s meeting. She appears to have done the recording secretly without the respondent’s knowledge at the time when she was an employee of the respondent. This by itself was an act of misconduct and to allow the end product would be tantamount to sanitising the misconduct.
9. I must therefore agree with the respondent that the impugned audio recording as contained in compact disc rom (A) and compact disc rom (B) is inadmissible as evidence.
10. The result is that the respondent’s objection dated October 3, 2022 is upheld with costs in the cause.
11. Orders accordingly.
DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF JULY 2023LINNET NDOLOJUDGEAppearance:Mr. Wesonga for the ClaimantMs. Wayua h/b for Mr. Uvyu for the Respondent