[2024] KEELRC 2226 (KLR)

Ndalo v Consolidated Bank of Kenya Limited (Environment & Land Case E292 of 2024) [2024] KEELRC 2226 (KLR) (19 September 2024) (Ruling)

Neutral citation: [2024] KEELRC 2226 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Environment & Land Case E292 of 2024

BOM Manani, J

September 19, 2024

Between

Tom Ndalo

Claimant

and

Consolidated Bank of Kenya Limited

Respondent

Ruling

1. The Claimant has instituted these proceedings to challenge the Respondent’s decision to terminate the contract of service between them. According to him, the impugned decision was without valid reasons and contravened fair procedure. As such, it should be vacated.

2. On the other hand, the Respondent contends that the decision was informed by the Claimant’s failure to meet its performance threshold during his probationary term. As such, his contract was legitimately terminated.

The Application 3. The Respondent has filed the application dated 24th May 2024 seeking to expunge a series of documents from the Claimant’s list and bundle of documents for a number of reasons. First, it contends that the Claimant illegally procured the impugned documents. Second, it contends that some of the minutes sought to be relied on by the Claimant have not been signed by it thus rendering them inadmissible in evidence. Third, it avers that some of the documents are marked private and confidential and are therefore not intended for public consumption including by the court. Fourth, that allowing the Claimant to rely on the documents will prejudice it (the Respondent) and will be detrimental to the administration of justice. Fifth, that the impugned documents contain sensitive information relating to its (the Respondent’s) business. Sixth, that public interest dictates that the documents be expunged from the court’s record.

4. The application is opposed by the Claimant. He has filed an affidavit dated 4th June 2024 on which he relies to contest the motion.

5. According to the Claimant, all the documents in dispute were legitimately obtained by him whilst he was in the service of the Respondent. As such, they were not illegally acquired as alleged by the Respondent.

6. The Claimant contends that the constitutional and statutory provisions which the Respondent has invoked to anchor the application deal with situations where a citizen is seeking information which is not in his possession. In his case, the information he seeks to produce in evidence is already in his possession and was lawfully accessed. As such, the aforesaid provisions of law are not applicable.

Analysis 7. In the affidavit in support of the application, the Respondent’s Acting Company Secretary and Head of Legal Department reiterates what has been set out earlier in this ruling. Although he contends that admission of the documents will prejudice the Respondent’s case and will be detrimental to the administration of justice, he does not demonstrate how use of the said documents will prejudice the Respondent or injure the administration of justice. Further, although he contends that the documents bear sensitive business information, he does not indicate which information this is.

8. Article 35 of the Constitution deals with the right to access information. It reiterates every person’s right to access information which is held either by the State or private individuals. However, it does not delve into how the information should be accessed.

9. Parliament has enacted the Access to Information Act, Cap 7 M Laws of Kenya. The objective of this piece of legislation is to operationalize the right to access information as set out under article 35 of the Constitution.

10. In my view, the Access to Information Act provides mechanisms through which an individual may lawfully procure information from either a State agency or a private individual. The Act does not delve into the issue of illegal access to information.

11. Article 50(4) of the Constitution provides 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.’’

12. In my view, this provision serves two critical purpose:-a.First, it acknowledges that notwithstanding the provisions of the Access to Information Act which provide for mechanisms for accessing information, an individual may access information through methods that are considered illegitimate.b.Second, it prohibits the use of such evidence in judicial proceedings if this will render the trial unfair or otherwise be detrimental to the administration of justice.

13. In my humble view therefore, the article does not introduce a blanket ban on illegitimately acquired evidence. What it does is to ban admission of such evidence in proceedings if introducing it will prejudice a fair trial or be detrimental to the administration of justice.

14. Therefore, a party objecting to reliance on such evidence has the duty to demonstrate that:-a.The evidence was illegitimately obtained.b.Use of the evidence will prejudice his case.c.Use of the evidence will be detrimental to the administration of justice (Njenga v Dib Bank Kenya Limited (Cause E400 of 2020) [2023] KEELRC 1549 (KLR) (15 June 2023) (Ruling)).

15. I have combed through the Respondent’s affidavit in support of the application and I do not think that it meets this threshold. First, it does not cogently demonstrate that the evidence was illegally acquired. Although the documents were generated by the Respondent, the Claimant has explained that the Respondent shared them with him in the course of his employment whilst he was in its service. It is noteworthy from the court record that the Respondent did not file a supplementary affidavit to controvert this account by the Claimant.

16. In my view, once the Respondent shared the documents with the Claimant, it disclosed them to him. This, in effect, removed the confidentiality tag on the documents.

17. But even if I may be wrong in the above view, the mere fact that the Claimant acquired the documents illegitimately does not, of itself, constitute an absolute bar to their introduction in evidence. The documents can only be locked out of the trial if the Respondent is able to cogently demonstrate that their admission in evidence will prejudice its case or will be detrimental to the administration of justice (Muchiri v Pernod Ricard Kenya Limited (Cause E198 of 2022) [2024] KEELRC 1322 (KLR) (27 May 2024) (Ruling)). In my humble view and having regard to the material before me, I do not think that the Respondent has discharged this burden.

18. The Respondent has cited decisions by the superior courts in support of its prayer that the impugned documents should be expunged from the court’s record. First, it refers to the decision by the Court of Appeal in Okiya Omtatah Okoiti & 2 others v Attorney General & 4 others [2020] eKLR. In the decision, the court emphasized the need to procure evidence in a legitimate manner in compliance with the law. However, I do not understand it to have been stating that once evidence is shown to have been illegitimately acquired, it becomes absolutely inadmissible in a trial. Rather, I understand the court to have been stating that such evidence ought to be rejected if reliance on it will prejudice the opponent in the trial or will otherwise be detrimental to the administration of justice. The court expressed itself on the issue 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. This view accords, we believe, with the Supreme Court decision in Njonjo Mue & Another vs. Chairperson of Independent Electoral and Boundaries Commission & 3 Others [2017] eKLR.’’

19. In Mue & another v Chairperson ofIndependent Electoral and Boundaries Commission & 3 others (Presidential Election Petition 4 of 2017) [2017] KESC 45 (KLR) (Election Petitions) (11 December 2017) (Ruling), the Supreme Court referred to the decision in David Ogolla Okoth v Chief Magistrate court, Kibera & 2 others; [2016] eKLR where the learned Judge had expressed himself on the matter as follows:-“It is true evidence ought to be obtained in accordance with the provisions of both the Constitution and of the law. Obtaining evidence and indeed, as in this particular case, seizing the same without first obtaining appropriate warrants violates constitutional norms. The right to property as well as the right to privacy will be violated. ... In such instances, article 50(4) provides…[e]vidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice.I do not however agree with the position adopted by the petitioner which is seemingly an unqualified one that all evidence not properly obtained lead to some form of prejudice and therefore the automatic termination of a criminal trial. Such an approach negates and dilutes, invariably, the words of the Constitution emphasized above. There has to be established that a right in the Bill of rights was unjustifiably violated whilst obtaining the evidence in question. Secondly, there must then be shown that the admission of such evidence would render the trial unfair or be detrimental to the administration of justice.”

20. The Supreme Court agreed with the above expression in the following terms:-‘’Again that is the correct interpretation of the issue at [of] hand generally but in the instant matter, the Constitution provides for the right of access to information which has been operationalized through two pieces of legislation, the Independent Electoral and Boundaries Commission Act and the Access to Information Act.’’

21. My understanding of the foregoing decisions is that the two courts were in agreement that as a general rule, illegally obtained evidence is to be abhorred. However, I do not understand the courts to have been stating that the fact that evidence has been obtained illegitimately constitutes an absolute bar to its admission in evidence. Rather, I understand them to have been saying that such evidence ought to be excluded if its use will occasion prejudice to the opponent or will otherwise be detrimental to the administration of justice.

22. Importantly, in the two cases, the parties who had sought to introduce the impugned evidence had not demonstrated how they accessed them from their opponents. In contrast, the Claimant in the instant case has stated on oath through affidavit that the Respondent shared the documents with him whilst he was in its employment. Therefore and in his view, he legitimately accessed them. As was observed earlier, the Respondent did not file a supplementary affidavit to controvert this assertion by the Claimant.

23. The Respondent has also relied on the decision in Baseline Architects Limited & 2 others v National Hospital Insurance Fund (2008) eKLR. However, I note that the decision predates the Constitution 2010. Therefore, it may not be of assistance in interpreting article 50(4) thereof.

24. Finally, the fact that some of the documents are not signed by the Respondent or have not matured, in my humble view, only affects their probative value. It does not provide justification for their exclusion from the court record.

Determination 25. For the foregoing reasons, I arrive at the conclusion that the Respondent’s application dated 24th May 2024 is devoid of merit.

26. As such, it is dismissed.

27. Costs of the application shall abide the results of the case.

DATED, SIGNED AND DELIVERED ON THE 19TH DAY OF SEPTEMBER, 2024. B. O. M. MANANIJUDGEIn the presence of:………………… for the Claimant……………… for the RespondentOrderIn 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.B. O. M MANANI