https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2185

 **REPUBLIC OF KENYA** **IN THE EMPLOYMENT *&* LABOUR RELATIONS** **COURT OF KENYA AT KISUMU** **CAUSE NO. E090 OF 2025** WYCLIFFE OTIENO ODONDI…………..………….…………**CLAIMANT** **VERSUS** NATIONAL BANK OF Kenya LIMITED…..…...…..……. **RESPONDENT** **RULING** 1. There is an objection by the Learned Counsel for the Claimant Ms. Buyengo. The objection raised is in respect to the documents comprised in the Respondent’s bundle as Documents No. 9 and 10. It is asserted the Respondent was put on notice when the matter came up before my brother Justice Dr. Gakeri. The Learned Counsel for the Claimant thus objects to the production of the evidence as it is electronic evidence which has no certificate of electronic evidence. The Counsel for the Claimant further argues that the documents which are at pages 42-62 should be expunged as they were filed without leave after pleadings were closed. 2. The Respondent’s Counsel Ms. Aduke is opposed and argues that whilst it’s true there was filing of electronic evidence, there was no objection raised to the documents. It was asserted that there have been numerous appearances and the Claimant’s Advocate did not object. It was stated that Ms. Buyengo did nor raise it then and only raised it at this juncture. It was argued by Learned Counsel for the Respondent that no prejudice will be suffered as the Claimant and his Counsel had time to interact with the document from December 2025 when the same was filed. She argues the Claimant even testified and made reference to the documents. Counsel thus urges that the documents being objected to be admitted forthwith and hearing proceed. 3. The Counsel for the Claimant in her brief reprise argued that the Court proceedings will bear out that the Claimant objected to the documents and therefore cannot be said to have waited for the last possible time to make the objection. She argued that the objection could not be raised when the Claimant was testifying as he was not the one to produce the documents. It was argued that there should be guidance from the Court on the issue. Disposition 1. The Court has reviewed the proceedings before Gakeri J. Indeed, on 28th January 2026, the Claimant’s Counsel Ms. Buyengo indicated in Court on that day that she was seeking the documents filed on 27th January 2026 be expunged from the record as it was electronic evidence and it was not accompanied by a certificate of electronic evidence. She said the document should be struck out. 2. It is therefore incorrect to assert as Ms. Aduke for the Respondent asserts, that the Claimant did not raise the objection prior. Ms. Buyengo is on record objecting to the bundle and even sought to have it struck off. The Court notes that the portion that is electronic evidence ought to have had a certificate to ensure there was authenticity in respect to the document with proper laying out of how the same was handled including the manner of extraction from the computer in question or the web. 3. In the case of **William Odhiambo Oduol *v* Independent Electoral *&* Boundaries Commission *&* 2 others [2013] KEHC 2710 (KLR)** Muchelule J. (as he then was) stated thus in regard to electronic evidence: *“106B (1) Notwithstanding, anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied on optical or electro-magnetic media produced by a computer (herein referred to as a computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein where direct evidence would be admissible.”* *The conditions to be satisfied are provided in sub-section (2) as follows: a) the computer output containing the information was produced by the computer during the period over which the computer was used to store or process information for any activities regularly carried out over that period by a person having lawful control over the use of the computer; b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities; c) throughout the material part of the said period the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its content; and d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities. Under sub-section (4), where a party seeks to give evidence by virtue of section 106B he has, among other things, to tender a certificate dealing with any matters to which the conditions above relate. The certificate should further: a) identify the electronic record containing the statement and describing the manner in which it was produced; and b) give such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer. The certificate has to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate).* 1. I am in concurrence with the decision by Muchelule J. (as he then was). Further, there is a requirement for the serail numbers of the gadgets used to be availed and the fact the Respondent has not availed these, nor sought leave despite being put on notice by the Claimant, I find the documents in pages 42 to 62 of the Respondent’s bundle being documents No. 9 and 10 were not properly adduced and are therefore struck off. There will be no order as to costs for this. It is so ordered. **Dated and delivered at Kisii this 29th day of July 2026** **Nzioki wa Makau, MCIArb.** **JUDGE**