[2022] KEELRC 13359 (KLR)
The court found that the audio recording and transcript sought to be adduced by the claimant were obtained without notifying the persons whose communications were recorded, thereby infringing the respondent's right to privacy under Article 31(d) of the Constitution. Furthermore, the certificates accompanying the...
Source-derived case information.
- Citation
- [2022] KEELRC 13359 (KLR)
- Parties
- Claimant: John Makau Maluki; Respondent: Tiny Totos Kenya Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause E317 of 2020
- Procedural Posture
- Preliminary Objection / Ruling on Admissibility of Evidence
- Outcome
- preliminary objection upheld; evidence excluded
- Judges
- MN Nduma
- Legal Topics
- Admissibility of Evidence, Electronic Evidence, Right to Privacy, Preliminary Objection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
John Makau Maluki
Claimant
Tiny Totos Kenya Limited
Respondent
Procedural Posture
Preliminary Objection / Ruling on Admissibility of Evidence
Legal Issues
- 1 Whether audio recordings and transcripts produced by the claimant were illegally obtained and infringe the respondent's right to privacy under Article 31(d) of the Constitution.
- 2 Whether the certificates accompanying the electronic recordings satisfy the requirements of the Evidence Act for admissibility of electronic evidence.
- 3 Whether evidence obtained in violation of constitutional rights should be excluded from the proceedings.
Ratio Decidendi
The court found that the audio recording and transcript sought to be adduced by the claimant were obtained without notifying the persons whose communications were recorded, thereby infringing the respondent's right to privacy under Article 31(d) of the Constitution. Furthermore, the certificates accompanying the electronic evidence were not sufficiently comprehensive to satisfy the requirements of the Evidence Act regarding the production of electronic evidence. As a result, the court upheld the preliminary objection and ordered that the impugned documents and recordings be expunged from the record and excluded from consideration as evidence.
Court Disposition
preliminary objection upheld; evidence excluded
Orders
- Document No 8 dated July 9, 2020 and Document No 2 dated July 26, 2021 are expunged from the record.
- The electronic recordings thereof are excluded from the evidence before court for consideration.
Full Case Text
Judgment text and source record
25 paragraphs
Maluki v Tiny Totos Kenya Limited (Cause E317 of 2020) [2022] KEELRC 13359 (KLR) (1 December 2022) (Ruling)
Neutral citation: [2022] KEELRC 13359 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Nairobi
Cause E317 of 2020
MN Nduma, J
December 1, 2022
Between
John Makau Maluki
Claimant
and
Tiny Totos Kenya Limited
Respondent
Ruling
1. A preliminary objection was raised during the trial to have document number 8 in the bundle produced by the claimant dated July 9, 2020 which is an audio recording of events of January 6, 2020 and document number 2 (transcript of a phone call recording) dated July 26, 2021 be excluded on the grounds that the recording adduced was illegally obtained and the certificate dated July 9, 2020 and July 26, 2021 of the electronic recording be excluded from evidence before court. That the recording was not notified to the respondent’s Chief Executive Officer and Chief Finance Officer and therefore infringes on the respondent’s right to privacy protected under article 31(d) of theConstitutionof Kenya, 2010 which provides that: -31. Every person has the right to privacy, which includes the right not to have: -(a)(b)(c)(d)The privacy of their communication infringed.”
2. The respondent submitted that any evidence obtained in a manner that violates any right or fundamental freedom in the Bill of Rights shall be excluded if the admission of the evidence would render the trial unfair or is detrimental to administration of justice.
3. The court was referred to the High Court decision by Mrima, J in RC -vs- KKR[2021] eKLR as follows: -“152. If such conduct by private citizens is not checked and sanctioned accordingly, then the end result will be fanning chaos in society. It will be open to everyone to run around and gather evidence against the other in any manner. Such tendencies must be regulated. There must be order in doing things. Illegal ways of gathering information must be discouraged since the constitution and the law provide for ways within which any information may be obtained.”
4. The court was also referred to the Supreme Court decision in Presidential Election Petition No 4 of 2017, - Njonjo Mue & another -vs- Chairperson of Independent Electoral and Boundaries Commission and 3 others [2017] eKLR where the court rejected evidence obtained contrary to the provisions of the Constitution. The case involved production of internal memos said to have been illegally obtained and were still the subject of discussion at the Independent Electoral and Boundaries Commission. The same were expunged from the record.
5. The claimant submitted that the evidence was validly produced before court and in terms of the procedure under the Evidence Act, Cap 8o Laws of Kenya.
6. The fourth objection was that the certificates of the electronic recordings dated July 9, 2020 did not specify the email address used and the make and number of the telephone used. That it is not explained in the certificate how the recording was obtained and the serial number of the device used. That the recording was transferred months after the recording was done and there is no telling what changes may have occurred to the recording in the intervening period.
7. Upon considering the objection and submissions by both parties, the court is satisfied that the recording sought to be adduced by the claimant was illegally obtained without notification of the person whose communication was recorded.
8. Furthermore, the information given in the certificate of electronic recording dated July 9, 2020 and July 26, 2021 is not sufficiently comprehensive as to satisfy the court that the requirements under the Evidence Act, Cap 80 laws of Kenya on the production of electronic evidence were satisfied by the claimant.
9. Accordingly, the court upholds the objection and directs the two items of evidence being document No 8 of July 9, 2020 and document No 2 of July 26, 2021 be expunged from the record and the electronic recordings thereof are excluded from the evidence before court for consideration.
10. Costs in the cause.
DATED AND DELIVERED AT NAIROBI (VIRTUALLY) THIS 1ST DAY OF DECEMBER, 2022. MATHEWS N. NDUMAJUDGEAppearancesMr. Ogola for claimant/RespondentMr. Otieno for Respondent/ApplicantEkale – Court Assistant