Okelele v BOM Lavington Girls High School (Petition E057 of 2025) [2026] KEELRC 1791 (KLR) (25 June 2026) (Ruling)

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI ELRC PETITION NO. E057 OF 2025 *(Before Hon. Justice Dr. Jacob Gakeri)* ELIZABETH OKELELE ………..………………………………. PETITIONER VERSUS THE B.O.M LAVINGTON GIRLS HIGH SCHOOL …………………………………………………………. RESPONDENT RULING Before the Court for determination is the Applicant’s Notice of Motion dated 18th February 2026 seeking orders that:- 1. The Respondent be compelled to produce documents specified in the applicant’s Notice to Produce documents dated 30th October 2025. 2. Costs of this application be provided for. The Notice of Motion expressed under Section 69 of the Evidence Act, Order 51 Rule I of the Civil Procedure Rules, 2010 and Sections 1A, 1B and 3A of the Civil Procedure Act and based on the grounds set forth on its face and the Supporting Affidavit of the applicant sworn on 18th February 2026. According to the applicant the Respondent produced documents selectively in that the delivery books were unclear as they omitted the time section on crucial dates. That the unclear copies conceal vital evidence on the applicants right to fair hearing. Strangely, the applicant filed two Supplementary Affidavit sworn on 14th January 2026 and 13th April 2026. The court record has no indication that the 2nd Supplementary Affidavit was filed with leave of the court or were properly on record. The court will ignore the latter altogether. By a Supplementary Affidavit sworn by the applicant on 14th January 2026 the applicant deponed that the Secretary to the Respondent’s Board of Management was aware of her pregnancy and excused the applicant on lateness on that account and never complained, the gross misconduct against her had not been proved and was not invited for the disciplinary hearing. That cash payments were allowed by the principal as long as they were accounted for and receipt issued. That the affiant was not responsible for checking account balances in the school account did not authorize cash in or out of the school’s account and denied being aware of Ledger Books destroyed in the kitchen, and was not accorded a fair hearing but appeared before the Board of Management. The affiant deponed that she had no warning letter. That documents were inaccessible. The affiant deponed that the school principal acted discriminatively in employment and dismissal. That the Principal’s personal Secretary and Accounts Clerk, Diana Wambugu and Phoebe Muchugia respectively were employed by the Principal. That the respondent logged into her personal email and downloaded personal data on working for another company and the forensic audit report was compromised and lacked authenticity. The affiant deponed that the provisions of the Human Resource policy were not followed and she was treated differently, thus discriminated and termination of employment was based on pregnancy and ethnicity and thus unfair. Respondent’s Case By a Replying Affidavit sworn by Jane Mwangi, the 1st Respondent’s Secretary on 26th February 2026, the affiant deponed that the respondent did not produce documents selectively and all available documents were produced. That the Applicant ought to have known her case and could not start searching for documents after filing the case. That if photocopied documents were unclear, the Applicant’s counsel could visit the respondent’s advocates office on an agreed dated for examination of delivery books. That all the documents mentioned by the Petitioner can be produced as per the Advocates letter dated 2nd December 2025. That most of the documents sought had been produced and were ON record but the Applicant was on a fishing expedition and was not keen on prosecuting her case as what can be shared had already been shared and the applicant was intent on delaying the hearing. Applicant’s Submissions As to whether the Respondent should be compelled to produce the documents, Counsel urged that the court had unfettered discretion to order production and discovery of documents, if relevant and necessary. Reliance was placed on Section 69 of the Evidence, Act, on reliance on secondary evidence where a party failed to comply with a Notice to Produce citing Concord Insurance Co. Ltd (Under Statutory Management V NIC Bank Ltd (2020) eKLR and Aluoch V Kenya Ports Authority & another (2025) KEELRC 1756(KLR). Counsel submitted that the Delivery book ought to be produced. Reliance was also placed on Section 10 (6) and (7) of the Employment Act on maintenance of records by the employer, citing Peterson Ndungu & 5 others V Kenya Power & Lighting Company Limited (2014) eKLR and Silas Muturi Mugambi V Highland Mineral Water Co. Ltd (2015) eKLR to urge that an employer cannot benefit from its failure to produce records. Also cited was the decision in Oracle Productions Ltd V Decapture Ltd & 3 others (2014) eKLR, to urge that the respondent offered no lawful basis for refusing to comply with the Notice to Produce and the documents existed or reasonably believed to exist. That the copies of delivery book produced were unclear. Reliance was also placed on the sentiments of the Court in ABN Amro Bank N.I V Kenya Pipeline Co. Ltd 920140eKLR on discovery generally, to urge that the respondent was legally bound to produce the documents. Respondent’s Submissions Counsel submitted that the Notice to Produce in this instance was unnecessary as its client had agreed that counsel could visit its offices for examination of the documents to aid in discovery and saved on the court’s time but was not keen on it, the Petitioner never asked for crucial documents and was supplied with what was available and/or in the respondent’s possession and explained why other documents could not be supplied and the Petitioner had not shown that she had secondary evidence of the documents being requested for citing the sentiments of the court in Nic Bank Case (supra). Counsel submitted that a Notice to produce cannot be used to aid a party in a suit to prove its case unless a basis was established that the documents to be relied upon were in the hands of the other party and must thus prove the existence of the facts giving rise to the cause of action. Counsel urged that the petitioner must not be permitted to launch a fishing expedition under the guise of the application to produce so as to discover new evidence to enhance her case. Reliance was placed on Almasi Bottlers Ltd V M’mbijiwe & 3 others (2025) KEHC 8726(KLR) on the scope of discovery. Also cited was the decision on Crown Paints (Kenya) Ltd V Dry Associates Ltd (2015) eKLR on prove of relevance of the facts sought against the pleadings. Counsel submitted that the applicant had not shown the *nexus* between the documents sought and her case. According to counsel the purpose and threshold for an order of discovery is to ensure that all documents and information necessary for the just determination of the suit are made available for the parties and the Court and in this case the documents had been availed. Counsel urged the court to dismiss the application. The only issue for determination is whether the instant application has merit. It is common ground that the petition was an employee of the Respondent effective January 2015 and served until 15th July 2024 when his employment was terminated on various grounds highlighted in the summary dismissal letter of even date. The Petitioner filed the instant Petition on 12th February 2025 and the Respondent filed a Replying Affidavit together with attachments on 21st July 2025. The instant application was filed on 20th February 2025 and on 27th April 2026 counsel for the Petitioner informed the court that since the Respondent’s, Counsel had promised to avail the documents but did not, he would proceed with the application and directions on the filing of submissions were issued and a ruling date fixed on 18th May 2026, when parties confirmed compliance. The principles that govern Notices to Produce are well settled as provided for under section 69 of the Evidence Act. The party in whose power or possession the document(s) is or his advocate must have been given notice or such notice as the court deemed reasonable in the circumstances. In this case, the applicant filed a Notice to Produce dated 30th October 2025 and the documents were not availed. Significantly, the Petitioner’s case is fundamentally a termination of employment but further alleges violation of Article 24, 41, 47 and 50 of the Constitution of Kenya, principally the rights to fair hearing and fair administrative action. Indeed, the Petitioner’s principal remedy is reinstatement and was also claiming compensation, salary in *lieu* of notice, damages and service pay among other reliefs. Bearing in mind that the Notice to Produce ought not be used to enable a party access evidence it did not have to prosecute its case, the court is satisfied that the Respondent should supply the Petitioner with the following documents, if not filed and/or supplied previously: - 1. Minutes of the disciplinary hearing 2. Any investigation report implicating the Petitioner’s conduct 3. Warning letter, if any 4. Evidence of payment of terminal dues and certificate of service. 5. Any other document be accessed at the Respondent’s Counsel’s office on a date(s) agreed upon by Counsels. Parties shall bear own cost of the application. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 25TH DAY OF JUNE, 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. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 25TH DAY OF JUNE, 2026. DR. JACOB GAKERI JUDGE