[2015] KEELRC 337 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT & LABOUR RELATIONS COURT

AT NAIROBI

CAUSE NO 35 OF 2015

(Before Hon. Justice Hellen S. Wasilwa on 29th October, 2015)

VINCENT MUEMA MUTUKU……………………………………..………..CLAIMANT

VERSUS

RIFT VALLEY RAILWAYS (KENYA) LIMITED ……………………RESPONDENT

RULING

The Claimants herein have filed an application herein dated 28/4/2015 through a Notice of Motion brought pursuant to Section 3, 12 (3) (viii), 20 (1), (4) (d) and (5) of the Industrial Court Act, 2011 and Rule 16(1) of the Industrial Court (Procedure) Rules 2010. They seek orders. That:

THAT this Honourable Court do compel by way of an Order or production directed to the Human Resource Manager of the Respondent to produce before this court under oath the following documents:

Certified copies of the payslips with respect to one Faith Kiura for the period when she was engaged as a management trainee in 2013 and for the three (3) months preceding the 29th October 2014;

Certified copies of the qualification papers for Faith Kiura.

THAT the above mentioned documents be produced by the Respondent within fourteen (14) days or such other time as the court may determine failure to which the Respondent’s reply filed in this cause be struck out with costs.

THAT the costs of this application be in the cause.

The application is based on the grounds:

THAT the documents sought are in fact and in law in the custody of the Respondent;

THAT the documents sought are relevant and necessary for the proper determination of the issues in dispute between the parties;

THAT the information contained in the documents sought is pertinent to the Claimant/Applicant’s case and ought to be included in evidence;

THAT the documents if produced before this court, will ensure fair trial as they would assist in the just, expeditious and proportionate disposition of this matter;

THAT the production of the documents sought herein will not occasion any prejudice to the Respondent and/or any other third party; and

THAT it is in the interest of justice that the Respondent be compelled to produce the documents as prayed.

The application is also supported by the annexed affidavit of Vincent Muema Mutuku sworn on 28th April 2015.

The Applicant has averred that he has filed this suit seeking damages for unlawful and unfair termination of employment, damages for disparity in pay. He has also pleaded discrimination. It is for this reason that he filed this application seeking production of documents relevant to prove his case in particular payslips and academic certificates of one employee of the Respondent and he avers that this is necessary to prove discrimination at the work place. He further avers that these documents are pertinent to prove his case in a just expeditious and proportionate manner.

The Respondents opposed this application and they filed their grounds of opposition on 21/5/2015. They state that this application is frivolous, misconceived and an abuse of the court process. They also state that the application offends the provisions of Article 31 of the Constitution and also Section 5(4) (b) of Employment Act. They want the application dismissed.

The parties agreed to dispose of this application through written submissions.

Submissions of Claimant

The Claimant submitted that Article 35(1)(b) of the Constitution gives every citizen a right to access information held by another person and required for the exercise or protection of any right or fundamental freedom.

They also submitted that documents required are those set out in Section 21 of Employment Act 2007 which Respondents can avail for inspection by this court upon the Court’s direction. It is also the Applicant’s position that requirement of this documents is a discovery process which is available in all civil cases including Industrial claims as provided for in law. That under Section 20(4) (d) of Industrial Court Act the Court may order in writing signed by or on behalf of any person, production of documents for the purpose of dealing with the matter before it.

In addressing why discovery is important in litigation the Claimants have cited Havellock J in Concord Insurance Company Limited vs. NIC Bank Limited Nairobi High Court Case No. 175 of 2011 (2013) eKLR who stated that Pre-trial discovery is so central to litigation that the entire Order 11 of the Civil Procedure Rules 2010 has been substantially devoted to it, including sanctions for no-compliance, and Order 14 empowers the Court to order for production, impounding and return of documents as mirrored in Section 20 of the Industrial Court Act.

The Claimants have also submitted that it is deciding what can and should be produced as evidence in Court, the Court ought to balance the two aspects of public interest that is, harm ought not to be done to the public by the production of certain documents and that justice should not be frustrated by withholding of certain documents which must be produced in evidence for justice to be done.

They cited Conway vs. Rimmer & Another (1968) 1 All ER 874 where Lord Reid held:

“It is universally recognized that here there are two kinds of public interest which may clash. There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done …. but there are many other cases where the possible injury to the public service is much less and there one would think that it would be proper to balance the public interests involved. I do not believe that Lord Simon really meant that the smallest probability of injury to the public service must always outweigh the gravest frustration of the administration of justice”.

There Claimants therefore opines that in that light, the question of whether production of documents would be damning to public interest so much so that the same is deemed to be privileged is an issue to be resolved by the Court after interrogation of the pleadings together with the documents. It follows then that it is a tightrope that can only be settled upon the Court addressing its mind to the contents of the documents sought, their relevance to the case and the general public interest.

The Claimants have also submitted that the Court should determine whether the application seeks disclosure of documents that ought to be precluded from such disclosure and if the said documents are relevant to the case. They also want this Court to determine whether the said documents are covered by privilege.

The Applicants have therefore submitted that the documents sought to be produced are relevant in that they will shed more light to the claims made and the evidence to be adduced later in the course of the proceedings in this claim.

On confidentiality the Applicants have cited Alfred Crompton Amusement Machines Limited vs Commissioner of Customs and Excise (No. 2) 1973 2 All ER 1169 at 1171, where it was held:-

“….(iii) there was no basis for a claim to privilege in respect of the class (2) (c ) documents on the ground that they were document, or copies of documents which belonged to third party and had been entrusted to the Commissioners in confidence. Privilege against disclosure could not be claimed on the ground that documents whether confidential or not belonged to a third party and the confidential nature of a document was not itself a ground of privilege”.

The Claimants have therefore submitted that the application is merited and should be allowed.

Respondent’s submissions

The Respondents on their part have submitted that the documents sought to be produced are an abrogation of the constitutional right to privacy under Article 31 of the Constitution. That the application offends the provisions of Section 5(4) (b) of the Employment Act 2007. They aver that Faith Kiura is a 3rd party and a stranger to this claim and that it is instructive that this 3rd party’s connection to the suit is not pleaded at all in the statement of claim and is only introduced by the side wind vide this application.

The cited Leland I. Salano vs. Intercontinental Hotel (2013) eKLR, and Sitati vs. Mumias Sugar Company Limited No. 304 (ICK) where the learned JJ opined:-

“The documents are deemed confidential when the owner of those documents has taken reasonable steps, to limit access of the documents to employees and other unauthorized persons”.

They submit that the academic documents of Faith Kiura contains information that has been disclosed to the Respondent in a relationship of trust by the said Faith Kiura which information was shared with the legitimate expectation that it would not be divulged to any other person.

They also submit that the payslips of Faith Kiura are always in the custody of the employer and can only be accessed by the particular employee herself and nobody else because of their confidential nature.

The Respondents have submitted that access to information under Article 35 of Constitution is not absolute. It is not one of the non-derogable rights under Article 25 of the Constitution. They aver that Article 31 of Constitution acts as a limitation to Article 35 on access to information and therefore no person can be compelled to divulge private and confidential information.

They cited Warsame J in Baseline Architects Limited & 2 Others vs. National Hospital Insurance Fund Board Management (2008) eKLRwhere the learned Judge as he then was elaborated this position as follows:

“In my understanding, a party to a litigation is not obliged to produce documents which do not belong to him but which have been entrusted to his company by a third party in confidence. It would be an abuse of that confidence to disclose it, without the permission of the owner of the original documents”.

They also cited the Supreme Court in the matter of the Principle of gender representation in the National Assembly and the Senate (2012) eKLR which stated as follows:

“It is this Court’s duty to defend the Constitution, and ensure that all bodies within it are constituted constitutionally and employ all powers donated by the people to it constitutionally”.

They therefore aver that this Court should apply the law both vertically and horizontally in the application of the Bill of Rights. They ask Court to dismiss this application accordingly.

Issues for determination

Having considered the submissions of both parties, this Court narrow down issues for determination as follows:

Whether the information sought to be produced is relevant to this case.

Whether the production of the said documents infringes on the rights of privacy of their owner under Article 31 of the Constitution and so covered by privilege.

What Orders to give in the circumstances.

On the 1st issue, considering the nature of the documents sought to be produced being payslips and academic certificates of one Faith – I find that in light of the nature of the claim, the issue of discrimination will best be addressed if the said documents were to be produced. This would be as captured by Halsbury’s Laws of England Vol 13 paragraph 1:

“….provide the parties with the relevant documentary material before the trial so as to assist them in appraising the strength or weakness of their relevant cases and thus to provide the basis for the fair disposal of the proceedings before or at the trial …”

On privacy, it is true that Article 31 of the Constitution provides for privacy of an individual. However, this right is not absolute as Article 35 provides for access to information. The right to privacy therefore cease sot be absolute in light of Article 24 which states that Article 31 can be limited.

The documents required can also be documents as provided under Section 74 of Employment Act 2007 which an employer should keep and under Section 74 (2):-

“an employer shall permit an authorized officer who may require an employer to produce for inspection the records for any period relation to the preceding thirty six months to examine the records”.

The authorized officer here means a labour officer, employment officer or medical officer as defined under Section 2 of Employment Act 2007.

However, the flip side of this privacy rule sis whether documents relating to a 3rd party not party to a claim can be ordered produced by this Court?.

In considering this position the Court of Appeal in Pashito Holdings & Another vs. Ndungu & 2 Others held:

“The rule of audi alteram partem, which means hear the other side is a rule of natural justice. It is an indispensable requirement of justice that the party who has made a decision shall hear both sides, giving each an opportunity of hearing what is urged against him ………..The gravamen of the Respondent’s suit was that the Commissioner had no right to alienate public land to any person for any use other than that for which it had been reserved. The Respondents could not have established a prima facie case with probability of success which is an essential legal requirement in order to be entitled to Interlocutory Injunction unless the Commissioner was a party to the proceedings….The High Court should have directed that the Commissioner was a proper party without whom the relief sought against him could not be granted”.

Faith is not a party to this claim. Would it then be proper for this court to order that her payslip and academic credentials be produced in court without her presence. I do not think that would be proper exercise of discretion as it is tantamount to this court and exposing her without her presence.

In view of this reasoning, whereas ordinarily, I would be willing to grant the orders sought for ends of justice to be met, allowing the production of documents relating to a 3rd party who is not party to this claim is prejudicial to her and as infringement of her right to privacy.

This Court however cannot turn a blind eye to the substantive issue being raised by the Claimant that certain things were not being done right. It is for this reason that I employ the provisions of Section 74 of Employment Act 2007, and order that for ends of justice, the Labour Commissioner or an officer delegated by him do visit the Respondents premises and be provided with the employment records for the period under review for the preceding 36 months and do examine the amount of salaries paid in the categories of employers vis a vis then academic credentials and analyze them per work done and submit a report within 60 days to court without necessary disclosing their names.

Thereafter, this case will be set down for mention to receive this report and given further directions on the hearing of the main suit.

Read in open Court this 29th day of October, 2015.

HON. LADY JUSTICE HELLEN WASILWA

JUDGE

In the presence of:

No appearance for Respondent

No appearance for Claimant