https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2164

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **PETITION NO. E143 OF 2025** *(Before Hon. Justice Dr. Jacob Gakeri)* **ANN NYAMBURA NGUMO………………………………..PETITIONER** *VERSUS* **BURN MANUFACTURING USA LLC……………………...RESPONDENT** **RULING** Before the Court for determination is the Applicant’s Notice of Motion dated 29th January, 2026 filed under Certificate of Urgency seeking Orders that: 1. *Spent.* 2. *This Honourable Court be pleased to order that the Respondent has deliberately and in bad faith refused to comply with the Notice of Produce dated 15th December, 2025 by feigning ignorance of the entities BMC (BURN Manufacturing Co. US Hold Co) and BBK (burn Manufacturing USALLC, Kenya Branch, KE) and by producing falsified job description.* 3. *The Respondent be compelled to produce within 7 days all books, papers, letters, copies of letters, correspondence, writings and documents in its custody, possession or power relating to the matters in question in this suit, and in particular the items specified in the Notice of Produce dated 15th December, 2025, namely;* 4. *The full and complete BMC (BURN Manufacturing Co., US Hold co) and BBK (burn Manufacturing USA LLC., Kenya Branch, KE employment Contracts including all schedules, appendices and amendments of Adarsh Shah.* 5. *The Complete BMC and BBK employment payroll records, payslips and documentation detailing all remuneration, benefits and allowances for Adarsh Shah from 8th October, 2024 to date.* 6. *Any written BMC and BBK job description, role profile, or statement of duties for Adarsh Shah.* 7. *The full and complete BMC and BBK employment contract, including all schedules, appendices and amendments, of Dr. Sylvia Nelima Kokonya.* 8. *The complete BMC and BBK employment payroll records, payslips and documentation detailing all remuneration, benefits and allowances for Dr. Sylvia Nelima Kokonya from January 2020 to date.* 9. *Any written BMC and BBK job description, role profile or statement of duties for Dr. Sylvia Nelima Kokonya.* *4. This Honourable Court be pleased to vacate, rescind or reverse its earlier order(s) delivered on 27th November, 2025 expunging the Petitioners annexure “ANN-10 a” containing relevant BBK (BURN Manufacturing USA LLC Kenya Branch KE) employment contracts’ from the record and to hereby re-admit the same as secondary evidence of the contents of the said documents in line with Section 9 of the Evidence Act in absence of compliance with the orders sought herein.* *5. This Honourable Court be pleased to compel the Respondent to produce, within 7 days all books, papers, letters, copies of letters, correspondence, writings, and documents in its custody, possession or power relating to the matters in question in this suit and in particular the BMC and BBK employment contracts between itself and Adarsh Shah and Dr. Sylvia Nelima Kokonya.* *6. This Honourable Court be pleased to bar the Respondent from relying on, or adducing in evidence, the job description attached to its Response to the Notice of Produce dated 15th January, 2026, on account of being false, misleading, and the binding documents governing the comparators employment.* *7. Costs of this application be provided for.* The Notice of Motion is expressed under Article 159(2) of the Constitution of Kenya and Section 69 of the Evidence Act and it is based on the grounds enumerated on its face and the Supporting Affidavit of the applicant sworn on 29th January, 2026. The Applicant deposes that by a Notice to Produce dated 15th December, 2025, she requested the Respondent to produce documents relevant to the issues in contention, as the custodian and by a response dated 15th January, 2026, the Respondent indicated that it was unaware of the entities known as BMC and BBK used in the Notice of Produce. The applicant averred that the Respondent’s Company and Dimension Overview 2025 defines BMC as BURN Manufacturing Co., US Holdco and BBK as BURN Manufacturing USA LLC, Kenya Branch, KE and mandates the use of the codes on all company documents and the Notice was compliant and the Notice to Show Cause had the definition of BMC. That the job description of the “Chief People Officer” attached to the response was not a document governed by the employment of the comparators as it was copyrighted in 2022 and executed on 2nd December, 2024 and its genuiness was suspicious as all the Respondents were executed within the years of copyrighting. That the production of the documents was essential to the fair and just determination of the Petition and secondary evidence was admissible where a party refuses to produce documents and the interests of justice demanded that the documents be produced. **Respondent’s case** Adarsh Shah, vide Replying Affidavit sworn on 25th February, 2026 deponed that vide Ruling on 27th November, 2025, the Court expunged documents produced by the Petitioner as Exhibit ANN to her Supporting Affidavit sworn on 28th June, 2025 and the instant application was a veiled attempt to appeal against the ruling of the Court and no grounds had been pleaded in support of the prayer to vacate the ruling and orders issued on 27th November, 2025. The affidavit deponed that the Applicant’s Notice of Produce was responded to. That Section 59 of the Evidence Act could not be used to compel production of documents by a party but was a mechanism that enabled the party requesting to rely on secondary evidence where the original document was in the possession or power of the opposing party. The affiant deponed that the application was an abuse of Court process as the evidence the applicant sought to rely on was expunged and could not circumvent Court orders. That the Respondent complied with the Notice to Produce after seeking documents from the entities referred to and the Notice of Produce lacked specificity, was vague owing to use of abbreviations and job descriptions for both employees were provided. That the Respondent (Burn Manufacturing USA LLC) was a separate legal entity from Burn Manufacturing Co US Holdco (BMC) as evidenced by the certificate of registration and the applicant’s employer was the Respondent not BMC and neither the affiant nor Dr. Sylvia Kokonya held positions in BMC the Court had no jurisdiction over BMC and the application was for dismissal. The affiant denied that the Respondent declined to produce the documents and the job description signed on 2nd December, 2024 was a true description of the current scope of the position and consented to its production in this case. That the WhatsApp correspondence with the applicant dated 8th October, 2024, Exhibit ANN-5 related to acceptance of the offer of employment by the Respondent not the job description. The affiant deponed that the applicant was attempting to produce expunged documents and the job description of the Chief People Office lacked the copyright. That neither the affiant nor Dr. Sylvia Kokonya had consented to the production of confidential information or 3rd Party Information and could expose the Respondent to claims and liability for breach of privacy. That the request to produce documents ought to be clear, concise and reasonable under Section 69 of the Evidence Act. The affiant prayed for dismissal of the application. By a Further Affidavit sworn on 29th April, 2026, the applicant deponed that she was seeking an alternative remedy of vacation of the orders issued on 27th November, 2025 and did not bar her from regularising the process. That the applicant was seeking information from the Respondent as a subsidiary of the American Company relating to its employees working for both companies and both Adarsh Shah and Dr. Kokonya were working for both companies and the Respondent could not hide behind the veil of incorporation. That the Ruling related to admissibility of the documents not the contents of the Respondents documents and the right to privacy was not absolute. **Applicant’s submissions** On the validity and specificity of the Notice to Produce, reliance was placed on the decisions in **Gari & 2 Others V Republic (1990) KLR** that the notice was a procedural requirement for admitting secondary evidence and the Respondent was aware of the abbreviations BMC and BBK. Also relied upon was the decision in **Oracle Productions Ltd V Decapture Ltd & 3 Others (2014) eKLR** on the goal of discovery as well as the decision in **Kenya Commercial Bank Ltd V Gillys Security & Investigations Ltd & 2 Others (2026) KEHC 082 (KLR)** on the essence of discovery and urge that the Respondent was estopped from claiming ignorance. Counsel urged that the Notice to Produce was valid, proper, sufficiently specific and the documents were relevant and the Respondents response was non-compliant. Counsel also submitted on the job description of the “Chief People Officer” on record to urge that the document was falsified. On whether the documents sought were relevant and necessary for the determination of the Petition, Counsel submitted that they were intended to establish whether the Petitioner was discriminated on remuneration citing **Evangeline Nyagera (suing as the Legal Representative of Felix M’Ikiugu alias Mikiugu Jeremia M’Raibuni (Deceased) V Godwin Gachagua Githui (2017) KECA 72 (KLR)** on admissibility and relevance of evidence and **Statpack Industries V James Mbithi Munyao (2005) KEHC 2403 (KLR)** on the burden of proof to urge that the Respondent ought to be compelled to produce the documents. Counsel submitted that the Data Protection Act provided exceptions where personal data can be disclosed and the respondent it was a data controller and no data had been identified a confidential. Reliance was further placed on the decision in **Mati & another V Gicheru (2025) KEHC 2062 (KLR)** to urge the Court to order the Respondent to produce the comparators contracts citing **Muriithi V Public Service Commission & 2 others: Rotich & 3 Others (Interested Parties) (2022) 15126 (KLR)** on the relevance of the documents. Reliance was further made on the sentiments of the Court in **Obwoge V Flamingo Horticulture Kenya Ltd (2025) KEHLRC 3346 (KLR)** to urge that the Petitioner had established the comparators and urged that the balance weighed heavily in favour of allowing the application. **Respondent’s submissions** Counsel submitted that the Notice to Produce filed after the expunction ruling related to several documents expunged vide the Court’s ruling on 15th December, 2025. On jurisdiction to vacate the ruling dated 15th December, 2026, Counsel submitted that the instant application was the Petitioner’s attempt to have the expunged documents reintroduced as secondary evidence hence the orders sought, the Court was *fuctus officio* and the issue was *res judicata* and the application could not be styled as an appeal or review citing the decision in **National Bank of Kenya Ltd V Njau (1997) KECA 71 (KLR)** on the instances in which a review was possible to urge the Court to dismiss the application. As to whether the Respondent can be compelled to produce the documents sought, reliance was placed on **Ooko V Kevin & Associates (2026) KEHC 67 (KLR)** on the applicable law, to urge that the documents expunged were employment contracts belonging to the two former colleagues of the Petitioner and contained personal data including identification numbers, PINs, address and proprietary business information, remuneration, incentives reporting and the Petitioner could now rely on the documents. Reliance was also placed on the decision in **Lesirma Simeon Saimanga V I.E.B.C & 2 others [2018] KEHC 8537 (KLR),** on the effect of Section 69 of the Evidence Act, to urge that the applicant was attempting to circumvent the effect of the Court Ruling to indirectly rely on the same documents. Reliance was further placed on the decision in **Ethics & Anti-Corruption Commission V Ahaza & 12 others [2025] KEHC (9036) (KLR)** on notice to produce and **Aluoch V Kenya ports Authority & another [2025] KEELRC 1756 (KLR)** to urge that the notice to produce as framed was vague by making reference to BMC and BBK and was a generalized demand. **Counsel emphasized** That the documents contained sensitive information on the two colleagues of the Petitioner and production of the documents would infringe on third party sights and ought not be produced. That the two companies from which documents were sought were separate from each other and one was not privy to the instant suit. That no case had been made to show that the comparators performed similar functions, had comparable qualifications and experience. Counsel urged that the Respondent could not be compelled to produce the documents belonging to Burn Manufacturing US HoldCo as the Petitioner had not pleaded that it was her employer and the documents relating to the company and Dr. Kokonya was protected by law citing **Tulia Amboseli Safari Camp Ltd V Opiyo & 2 others (2026) KEHC 3415 (KLR)** to urge that documents sought to be produced must be in the possession of the adverse party and the Respondent was not in possession of Burn Manufacturing US Hold Co. Counsel urged that a party could be compelled to produce documents the other party had not proved that they existed as held in **Obwoge V Flamingo Horticulture Kenya Ltd (Supra)** and the Petitioner had not produced the documents on payroll, payslips among others. As to whether the Respondent should be stopped from relying on its own evidence, the Petitioner had not provided any reason for the order sought and the provisions of Section 107 of the Evidence Act require proof of the allegations citing **Mugwang’a V Afya Co-operative Savings & Credit Society Ltd (2026) KEELRC 756 (KLR)** to urge that the job description of the Chief People Officer was the correct one and the Petitioner’s claim had no basis. Counsel urged that the alleged WhatsApp messages related to acceptance of the offer of employment not the job description. Counsel urged the Court to dismiss the application. It is common ground that Petitioner filed and served a Notice to Produce dated 15th December, 2025 seeking a list of six (6) categories of materials or bundles of documents and the Respondent responded vide Response to the Notice to Produce dated 15th January, 2026 by which the Respondent categorized Paragraphs 1 and 2 of the Notice to Produce as unspecific on account of use of the abbreviations BMC and BBK; which the Respondent characterized as unknown. The Respondent availed the job description of its Chief People Officer. Paragraph 4 was characterized as unspecific for use of the phrases BMC and BBK as was paragraph 5. However, the job description of the Chief Talent and Happiness Officer was supplied. The Applicant claims that the Respondent’s response was indeed non-compliant. In addition, the applicant is also contesting the job description of the Respondent’s Chief People Officer availed by the Respondent as well as what the expunction Order entailed. The issues for determination are; 1. *Whether the applicant had made a case for the Court to vacate, rescind or reverse its Order(s) vide its ruling on 27th November, 202e expunging the Petitioner’s Annexure “ANN 10a.”* 2. *Whether the instant application was designed to circumvent the Orders dated 27th November, 202e.* 3. *Whether the application is merited.* The principles that govern notices to produce are well settled. Under Section 69 of the Evidence Act; *Secondary evidence of the contents of the documents referred to in Section 68(1)(a) of this Act shall not be given unless the party proposing to give such evidence has previously given to the party in whose possession or power the document is, or to his advocate, such a notice to produce it as is required by law or such notice as the court considers reasonable in the circumstances of the case.* On the first issue, It is not in contest that Respondent filed a Motion dated 13th August, 2025 seeking *inter alia* that the documents annexed as Exhibit “ANN 10a” to the Supporting Affidavit of Ann Nyambura Ngumo sworn on 28th June, 2025 be expunged from the Court record and the Court allowed the prayer on the premises that the documents belonged to the Respondent and the Petitioner obtained them after termination of employment or held on to them contrary to the employment contract; having obtained them in the course of employment as Head of Human Resource. Surprisingly, the Applicant did not address the issue in its submissions. On its part, the Respondent contended that the no statute permitted the Court to vacate its ruling and the matter was *res judicata* and no case of review of the ruling had been made. While Courts routinely vacate and discharge orders, no law permits a Court to vacate or rescind or reverse a ruling otherwise by another ruling and for just cause. There must be a justification for such action and a case must have been made by the party seeking the orders rescinded. In the instance case, no justification has been made or authorities cited. The prayer is declined. On the second issue, it is common ground that the Petitioner filed the instant suit on 18th July, 2025 and served upon the Respondent on 24th July, 2025. The Respondent entered appearance on 7th August, 2025 and filed the Notice of Motion dated 13th August, 2025 on 14th August, 2025 under Certificate of Urgency and as adverted to elsewhere, ruling was delivered on 27th November, 2025. On 17th December, 2025, the applicant served the Notice to Produce dated 15th December, 2025. The Respondent responded vide response dated 15th January, 2026 and the instant application was filed on 29th January, 2026. From the foregoing, it is discernible that the concatenation of events from December 2025 to the filing of the instant application had its genesis in the Court ruling and the documents sought to be produced include those expunged by the Court. In the Court’s view, while other considerations may have contributed to the Notice to Produce and the resultant application, the Court ruling was the major driving force as it denied the Petitioner evidence she wished to rely on. One action led to the other which explains the attempt to have the ruling rescinded or vacated. As to whether the instant motion has merit, the Court will address the issues whether the Notice to Produce was vague and/or lacked specificity, the Chief People Officer’s job description and the expunction order. On the alleged vagueness of the Notice to Produce, it is not in dispute that the applicant did not identify any entity by its correct name but used abbreviations “BMC” and “BBK.” Under paragraph 1 of the Notice to produce, the applicant sought “The full and complete BMC and BBK contracts, including schedules, appendices, and amendments of Adarsh Shah, who commenced employment on or about 8th October, 2024.” The abbreviations were, likewise used in paragraphs 2, 4 and 5 of the Notice to Produce. To justify its position,, the Respondent availed copies of the registration documents of two companies including the Respondent and none had an abbreviation of its name. Similarly, the applicant’s employment agreement dated 1st August, 2016 identified the employer as Burns Manufacturing USA LLC with no abbreviation. It is trite law that companies analogous to individual human beings are identifiable principally by name hence the need for uniqueness of the name in the corporate world. In rebuttal, the applicant filed a two page document entitled Company Dimensions Overview – 2025 which the applicant described as an internal document. The document had abbreviations used in the Notice to Produce but was neither dated nor authenticated in any manner. The applicant led no evidence to demonstrate that the two (2) pages were indeed part of the Respondent’s official documents and unsurprisingly, in her Supporting Affidavit, the applicant amended the Notice to Produce by inserting the names of the companies. Evidence of ordinary usage of the abbreviations would effortlessly have proved that BMC was a generally accepted abbreviation of the Respondent’s name, without which the applicant ought to have used the correct description of the companies being referred to. In the Court’s view, the letters BMC and BBK used in paragraphs 1, 2, 4 and 5 of the Notice to Produce were vague and could in corporate law constitute misdescription of a Company’s name. However, the Court is not persuaded that the vagueness of the names vitiated the application. The more crucial aspect of the Respondent’s contention is lack of specificity of the Notice to Produce. In **Evangeline Nyagera (Suing as the Legal Representative of Felix M’Ikiugu alias Mikiugu Jeremia M’Raibuni (Deceased) V Godwin Gachagua Githui (Supra)** the Court of Appeal held; *“. . . We think the appellant ought to have specified the nature of the documents and their relevance. As the suit is still pending and as there is need for fair determination of the dispute in the suit which may not be possible if a party is denied the opportunity to adduce relevant evidence, who hold the view that the appellant should not be barred from adducing secondary evidence though copies of the original documents.* ***It is imperative that the nature of the documents, their number and relevance is shown. The other party will have an opportunity to cross-examine on veracity and legitimacy if it be necessary.”*** It is trite that documents are known by titles or sub-titles or headings. Whereas the documents requested under paragraph 3 and 6 of the Notice to Produce were specific and easy to avail, other documents sought lacked specificity and the number was unspecified. As framed, the Notice to Produce was seeking an indeterminate load of documents known to the applicant only and could easily have contested the sufficiency or otherwise of whatever the Respondent delivered. It requires no belabouring, notice to Produce ought to be specific and a definite define and the number of documents sought ought to be known for purposes of accountability. The applicant’s Notice to Produce dated 15th December, 2025 was too broad and did not meet the threshold of specificity and number of documents. Regarding the job description of the Respondent’s Chief People officer, the applicant contested the fact that the document was copyrighted in 2022 but signed in December 2024. That that of itself created suspicion that the document was not authentic. According to the applicant, documents were signed in the year they were copyright. Whereas that may have been the case, no verifiable material was placed before the Court to demonstrate that that was the Respondent’s practice in all instances. Nothing turns on this issue. As regards the information sought, the entire Notice to Produce related to two employees, namely, Adarsh Shah and Dr. Sylvia Nelima Kokonyo and the information sought was about them as employees of the Respondent which is personal to them and the Respondent would require their consent to disclose the information to 3rd parties. While the documents belonged to the Respondent, the information therein is private and related to persons not privy to the suit. One of the basic principles of data protection under the provisions of the Data Protection Act is that a data controller and data processor are obliged to ensure that personal data is processed in accordance with the right to privacy of the data subject and under Section 26(a) of the Act, a data subject has the right to be informed of the use to which their personal data is to be put. Under Section 28(3) of the Act, a data Controller or data processor shall collect, store or use personal data for a purpose which is lawful, specific and explicitly defined. Under Section 32 of the Data Protection Act 1. A data controller or data processor shall bear the burden of proof for establishing a data subject’s consent to the processing of their personal data for a specified purpose. 2. Unless otherwise provided under this Act, a data subject shall have the right to withdraw consent at any time. It is trite law that Section 59 of the Evidence Act enables a party to rely on secondary evidence at its disposal where the party in possession or custody of the original documents refuses to produce them after a notice to produce is given. It is not a tool at the disposal of a party to compel the other party to avail documents to enable such party prosecute its case. However, the party seeking the original documents is required to show that it has copies of the documents it seeks to rely on. In **Obwoge V Flamingo Horticulture Kenya Ltd (Supra)**, cited by the applicant’s Counsel, the Court stated as follows; *“The Court agrees with the Respondent that an applicant is presumed to have a copy of a document, before he can seek the court’s assistance to access the original under Section 69 of the Evidence Act . . .* *His application should have been directed to the Respondent, as a notice to produce. The Court has no reason to order the Respondent to supply the Claimant with original documents, whose copies the Claimant has not shown that he possesses or whose existence has not been established.”* In the instant case, the applicant did not attach copies of the documents requested for. Finally, on the expunction Order issued on 27th November 2025, the Court stated as follows; *“The law is clear on the issue of illegally obtained evidence. Such is evidence that is obtained by acts which are illegal and includes evidence obtained in breach of the law and the constitution. Such evidence would be evidence that render the trial unfair and detrimental to the administration of justice . . . Having found that the information (documents) the Petitioner has sought to rely on were obtained after her termination from service, or which she held on to upon termination contrary to the employment contract, it would be to the detriment of justice to allow her to use them as they are . . .”* For the foregoing reasons, the Court finds that the Notice of Motion dated 29th January, 2026 lacks merit and it is disallowed with no orders as to costs. **DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 27TH DAY OF JULY, 2026** **DR. JACOB GAKERI** **JUDGE** **ORDER** In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with **Order 21 Rule 1** of **the Civil Procedure Rules**, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of **Section 1B** of the **Civil Procedure Act (Chapter 21 of the Laws of Kenya)** which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes. **DR. JACOB GAKERI** **JUDGE**