https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1375

Njiraini v National Cement Company Limited (Cause E026 of 2025) [2026] KEELRC 1375 (KLR) (22 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1375 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nakuru Cause E026 of 2025 AN Mwaure, J May 22, 2026 Between Naftaly Macharia Njiraini Claimant and National Cement Company Limited Respondent Ruling Introduction 1.The Respondent/Applicant filed a Notice of Motion dated 10th December 2025 seeking the following orders that:1.The audio recordings served upon the Respondent by the Claimant on 18th November 2025 be struck out and/or expunged from the court record.2.The Claimant be denied leave to rely on or produce the said audio recordings at the hearing of this matter.3.This Honourable court do find and hold that the audio recordings do not meet the mandatory requirements for admissibility under section 106B of the Evidence Act.4.Costs of this application be provided for. 2.The application is brought under section 1A, 1B & 3A of the Civil Procedure Act, section 106B of the Evidence Act Cap 80 Laws of Kenya, and all enabling provisions of the law. Respondent/Applicant’s Case 3.The application is supported by the affidavit of Samuel Ndungu Karanja, the Respondent/Applicant’s advocate, dated even date as the application. 4.The Respondent/Applicant avers that the Claimant/Respondent’s audio recordings served on 18th November 2025 are inadmissible. 5.The Respondent/Applicant contends that the recordings constitute electronic evidence requiring strict compliance with Section 106B of the Evidence Act, yet no certificate of electronic evidence was provided to establish the manner of production, device particulars, process integrity, or competence of the producer. 6.The Respondent/Applicant further contends that the recordings were introduced after pre-trial had closed, contrary to case management rules, and allowing them would amount to ambushing the defence and prejudicing trial preparation. 7.Accordingly, the Respondent/Applicant urged the Court to strike out the recordings to safeguard the integrity of its pre-trial directions. Claimant/Respondent’s replying affidavit 8.The Claimant/Respondent opposed the application vide a replying affidavit dated 13th January 2026. 9.The Claimant/Respondent avers that he acted on legal advice from his Advocate and was granted leave by the Court on 4th November 2025 to file a reply and additional documents. 10.Pursuant to that leave, the Claimant/Respondent avers that he filed and served audio recordings on 18th November 2025, which the respondent now seeks to strike out. 11.The Claimant/Respondent avers that the recordings are authentic, accurately reflect the respondent’s official documents, and comply with section 106B of the Evidence Act. To support admissibility, he confirms that a certificate of authenticity dated 7th November 2025 was prepared, detailing that the recordings were made on his personal phone, remain in their original form, and have not been altered or tampered with. 12.Parties were directed to file written submissions. Respondent/Applicant’s written submissions 13.The Respondent/Applicant submitted that section 106B of the Evidence Act provides that electronic evidence is only admissible if accompanied by a certificate of production that identifies the electronic record, describes how it was produced, provides details of the device used, and is signed by a responsible person. This certificate serves as proof of authenticity and reliability. The Respondent/Applicant relied on the case of Ogembo v Yongo [2024] KEHC 15763 (KLR), where Justice Aburili held that WhatsApp messages submitted without such a certificate were inadmissible, reinforcing the mandatory nature of compliance with section 106B of the Evidence Act for electronic evidence. 14.The Respondent/Applicant emphasized that electronic evidence is only admissible in court if it complies with section 106B(4) of the Evidence Act, which requires a certificate signed by a responsible person detailing the manner of production, the device used, and ensuring authenticity. Courts have consistently upheld this requirement, as seen in Republic v Barisa Wayu Mataguda [2011] KEHC 1481 (KLR) where a CD was deemed inadmissible without the certificate. In Kisumu County Assembly Service Board & another v Kisumu County Assembly Public Service Board & 4 others [2015] KEELRC 1474 (KLR) which stressed the need to prevent reliance on manipulated electronic records. In Richard Nyagaka Tong’i v IEBC [2013] eKLR where photographs were rejected for lack of certification and proof of process integrity. The Respondent/Applicant submitted that compliance with section 106B(4) is mandatory in both civil and criminal cases, and any electronic evidence filed without such certification should be expunged from the record. 15.In Kenya National Private Security Workers Union v G4S Kenya Limited [2025] KEELRC 1433 (KLR), the court expunged documents filed without compliance with section 106B(4) of the Evidence Act, reaffirming that electronic evidence is inadmissible without the mandatory certificate of authenticity. The Respondent/Applicant argued that any certificate produced later is an afterthought meant to mislead the court, and allowing such evidence would prejudice them by reopening pre-trial contrary to principles of efficiency and fairness. The Respondent/Applicant submitted that statutory non-compliance cannot be cured by general principles of justice or Article 159 of the Constitution, since the certificate requirement is a condition precedent to admissibility. 16.Finally, the Respondent/Applicant contended that costs should follow the event under section 27(1) of the Civil Procedure Act, and therefore the Respondent should be awarded costs of the application. 17.At the time of retreating to write the judgment, the Claimant/Respondent did not file written submissions or present a hard copy as per the ELRC practice directions rules. Analysis and determination 18.The court has considered the application, supporting affidavit, replying affidavit together with rival submissions on record; The issue for determination is whether the emails produced by the Claimant should be admitted as evidence. 19.Section 106B of the Evidence Act provides that information contained in an electronic record, once printed or stored on electronic or optical media, is deemed a document and admissible in court if certain conditions are met. These conditions include that the record was produced during regular use of the computer by someone with lawful control, that the information was regularly fed into the computer in the ordinary course of activities, that the computer was operating properly during the relevant period, and that the record accurately reproduces the information. It further clarifies that multiple computers used in succession are treated as a single computer. For admissibility, a certificate must be filed identifying the record, describing how it was produced, detailing the devices used, addressing the statutory conditions, and signed by a responsible person. Such a certificate serves as evidence of the matters stated, provided they are to the best of the certifier’s knowledge. 20.In County Assembly of Kisumu & 2 Others v Kisumu County Assembly Service Board & 6 Others(Supra), the Court of Appeal stated that the Evidence Act does not provide the format the certificate required under sub-section 106B (2) should take, and the certificate can therefore take any form, including averments in the affidavit of the recorder. 21.In this instant case, the Respondent/Applicant maintains that the Claimant/Respondent’s audio recordings served on 18th November 2025 are inadmissible, as they constitute electronic evidence requiring strict compliance with Section 106B of the Evidence Act, yet no certificate was provided to confirm production details, device particulars, process integrity, or the competence of the producer. The leave to file reply Claimant/Respondent further argued that the recordings were introduced after pre-trial had already closed, in violation of case management rules, and that admitting them would amount to ambushing the defence and unfairly prejudicing trial preparation. While the Claimant/Respondent argued that he presented the certificate of electronic evidence with his further documents. 22.The history of the case demonstrates the Claimant/Respondent was given leave by the court fo file further reply and threfore he filed further documents as well as the certificate of electronic evidence dated 7th November 2025 and as well attached the certificate of electronic evidence deponed by one Miss Nduta Kagumu. 23.The court is satisfied that the Claimant/Respondent duly presented the certificate of electronic evidence contemporaneously with the filing of the trial bundle, pursuant to the leave granted. This compliance squarely meets the mandatory requirements of Section 106B of the Evidence Act, which prescribes the certificate as a condition precedent to admissibility. The Court therefore accords full weight to the certificate, recognizing it as sufficient proof of authenticity, integrity, and reliability of the electronic recordings. In consequence, the Court finds that the evidentiary threshold has been met, and the recordings are properly admissible for consideration in these proceedings. 24.The court is persuaded by the case of County Assembly of Kisumu & 2 Others VS Kisumu County Assembly Service Board & 6 Others the Court of Appeal stated that:-“In relation to this case, the relevant conditions in that section are(a) if the computer output was recorded by a person having lawful control over the computer used; (b)if the output was recorded in the ordinary course of that person’s activities using a computer or some other electronic devise and fed into a computer that was properly operating throughout the material period; and (c) if that person gives a certificate that to the best of his knowledge, the output is an electronic record of the information it contains and describes the manner in which it was produced.The Evidence Act does not provide the format the certificate required under sub-section 106B(2) thereof should take. The certificate can therefore take any form including averments in the affidavit of the recorder.” 25.Flowing from the foregoing, the court finds that the application to struck out the Claimant’s documents lacks merit and it is therefore dismissed with costs. 26.The court has analysed the pleadings and the submissions of the respective parties and holds the Respondent/Applicant’s application lacks merit and so is dismissed. The court will proceed to full hearing and the Respondent will have a chance to cross-examine the witnesses even about the impugned documents. The parties can proceed to take a hearing date. 27.Each party to bear its own costs of this Application.Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 22ND DAY OF MAY, 2026.ANNA NGIBUINI MWAUREJUDGEOrderIn 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.A signed copy will be availed to each party upon payment of Court fees.ANNA NGIBUINI MWAUREJUDGE