Simon Kuria Wanyoike VS Aga Khan University

1. By an application dated 3rd July, 2024 the applicant sought orders inter alia that:
a) THAT this Honourable Court be pleased to permit the Plaintiff to file a supplementary witness statement and documents in support of hid claim filed on 27th May 2022.
b) THAT if prayer (1) above is granted the supplementary witness statement and supplementary witness documents filed contemplenously with this application be deemed to have been filed with the leave of the Court and be served on the respondents.
c) THAT this Honourable Court be pleased to take evidence taking the form of video recordings made by the claimant during two meetings held by him with the officers of the respondent.
2. The application was supported by the Affidavit of one Simon Kuria Wanyoike who deponed among others that:
a) That I am the Claimant herein.
b) That I crave the court’s leave to refer to the pleadings and proceedings
therein.
c) That as my response to the defense herein shows, I am a victim of discrimination by the respondent on account of my gender.
d) That in in the course of the preparation of this suit, I have come across a document which shows how the respondent handed over at a pay rise of 60%, to a female employee, the very job I had, to which it proposed to increase on reassignment by 15% only.
e) That my female assistant was redeployed at a pay rise of 30% whilst another female colleague was transferred to another department at a pay rise of 65%.
f) That one Rita Njeru, another female has now been handed over by the respondent the job I was doing at an enhanced salary by 60%.
g) That it is in the interest of justice that my application be allowed.

3. The respondent filed a replying affidavit through one Vickie Adiedo who deponed among others that:
i) I am the Respondent’s Human Resources Manager, fully conversant with
the matters of fact giving rise to the Claimant’s Application and I am duly authorized to make this Affidavit on behalf of the Respondent.

ii) I have read and understood (whose contents, where necessary, have been
explained to me by my aforesaid advocates), the contents of Claimant/Applicant’s Notice of Motion dated 3rd July 2024 and the Supporting Affidavit sworn by the Claimant on the same day and 1 swear this Affidavit in response thereof:

iii) The Respondent opposes the Claimant/Applicant’s intended filing of
further additional evidence, including the Claimant/Applicant's Supplementary Witness Statement and Supplementary List of Documents, all dated 2nd July 2024, as well as a Reply to the Statement of Response dated 4th July 2024.

iv) The Applicant/Claimant in the Supplementary List of Documents seek to introduce illegally obtained evidence, to wit, video recordings of a meeting attended by the Claimant and recorded overtly using the Claimant’s phone without the knowledge or consent of the other participants in the meeting including the Respondent’s employees and former employees who are third parties to this suit.
v) I am advised by the Respondent's Advocates, Mrs. Irene Kashindi, whose advice I verily believe to be true, that:
a) The Claimant’s act of obtaining video evidence through the means of overtly recording a meeting without the knowledge or consent of the other participants in the meeting offends the provisions of Article 31 of the Constitution of Kenya and the provisions of the Data Protection Act, 2019, which provide for the right to privacy.
b) The Claimant's act of seeking to rely on or produce such illegally obtained evidence offends the provisions of Article 50 (4) of the Constitution of Kenya. The said article provides that evidence obtained in a manner that violates any rights or fundamental freedoms in the Bill of Rights shall be excluded if the admission of that evidence would render the trial unfair or would otherwise be detrimental to the administration of justice.
vi) I am further advised by the Respondent’s Advocates, Mrs. Irene Kashindi, whose advice I verily believe to be true that, the intended evidence does not in any way allude to the existence of gender discrimination at the Respondent owing to the hiring of a female Research Grants Manager, Grants Support Office. The Respondent carried out the recruitment in a competitive manner, and the successful candidate was offered an employment opportunity and had the opportunity to negotiate the terms of her employment, which were captured in her employment contract.
vii) I am also advised by the Respondent’s Advocates, Mrs. Irene Kashindi, whose advice I verily believe to be true that the Applicant/Claimant seeks to introduce evidence that is neither material nor crucial to the instant case as it does not relate to the events that happened during the material time of the Claimant’s claim and it relates to third parties who are not involved or connected to the current suit.
Applicant’s Submissions
4. Dr. Kuria SC for the applicant submitted that trial of suits is governed by article 50 of the Constitution which guarantees each party a right to a fair hearing by an independent and partial tribunal, secondly the Employment and Labour Relations Court Act and the rules made thereunder.
5. The hearing has not commenced and rule 15 of the ELRC Court Procedure Rules governs pretrial proceedings. What the claimant was seeking was the opening of pleadings and holding of a second pre-trial conference. According to Counsel, the Motion was analogous to an application to amend pleadings in the sense that the applicant is seeking to introduce documents which were not before the Court when pleadings closed. The principles guiding the amendment of pleadings therefore applied to the present application. Counsel therefore relied on Order 8 rule 5 of the Civil Procedure Rules and the case of J.C. Patel vs B.D Joshi 19 EACA 42 where the Court stated that:
“The rule of the Court in such a case is that however negligent or careless may have been the first omission and however late the proposed amendment, the amendment should be allowed if it can be made without injustice

6. According to Counsel, the respondent will not suffer any injury from by allowing the claimant to use the documents described as it will have an opportunity to counter them through own affidavits and supplementary witness statement if need be. Counsel further submitted that the Court had power to permit an amendment and where it permits, the other party has a right to amend their pleadings. In this regard Counsel relied on the case of Moses Waruri Gatimu vs Douglas Mwai & Another [2018]eKLR on the purpose of pre-trial conference and the case of Thomas Ngarachuu Ngugi & 5 others vs. John Wilfred Wanyoike & Others [2019] eKLR on inclusion of documents.
Respondent’s Submissions
7. Ms. Kashindi for the respondent on the other hand submitted that additional evidence comprising of video recordings of meetings attended by the claimant and recorded using the claimant’s phone without the knowledge of the other participants in the meeting offended article 31 of the Constitution which protected the right to privacy and section 26 of the Data Protection Act. According to Counsel, the claimant proceeded to process the personal data of the attendees of the meetings without seeking their consent first and informing them the purpose for which that data will be put. They were not accorded a chance to object to the processing of the data. Counsel further submitted that reliance on the data would offend article 50(4) of the Constitution. Counsel further relied on the case of David Ogolla Okoth v Chief Magistrates Court, Kibera & 2 Others [2016]eKLR where the Court stated among others that:
“evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice.

8. Counsel commenting on the Supreme Court decision in Karan v Ochieng’ & 2 others on the right to fair trial under article 50 which included the right to give evidence at the trial, submitted that this right did not extend to production of illegally obtained evidence or evidence obtained in a manner that violates any of the rights in the Bill of Rights. Counsel relied on the Supreme Court decision in Mue & Another v Chairperson of Independent Electoral & Boundaries Commission & 3 Others which cited with approval the case of David Ogolla Okoth relied on earlier by Counsel in her submissions.
9. In conclusion Counsel submitted that from the foregoing authorities, the claimant’s act of obtaining video evidence by covertly recording a meeting without their knowledge or consent of other participants contravened the provisions of article 31 of the Constitution as well as section 26 of the Data Protection Act.
Determination
10. It is trite law that a party to litigation ought to have the right to provide all the evidence in support of their case. The exercise of this right is helpful to the Court as it will have the opportunity to hear and peruse all the material evidence presented by the parties and reach a just and fair determination of the issues in controversy. The exercise of this right is however subject to the Constitutional and statutory provisions that regulate the production of such evidence. Both parties before me appreciate this. Article 31 of the Constitution protects the right to privacy and of relevance to the matter before me, it protects the privacy of communication among others. Further section 25 of the Data Protection Act stipulates that every data controller or data processor shall ensure that personal data is —
(a) processed in accordance with the right to privacy of the data subject;
(b) processed lawfully, fairly and in a transparent manner in relation to any data subject;
(c) collected for explicit, specified and legitimate purposes and not further processed in a manner incompatible with those purposes;
(d) adequate, relevant, limited to what is necessary in relation to the purposes for which it is processed;

11. In the case of David Ogolla Okoth v Chief Magistrates Court, Kibera & 2 Others [2016] eKLR relied on by the respondent the Court stated that:
“Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice.

12. The applicant seeks produce evidence comprising of video recordings of meetings attended by the claimant and recorded using his phone without the knowledge of the other participants in the meeting. This in the Court’s view would not only be in violation of article 31 of the Constitution but also section 25 and 26 of the Data Protection Act.
13. The Orders sought cannot therefore be granted and the application is hereby dismissed with costs
14. It is so ordered.
Dated at Nairobi this 6th day of December, 2024
Delivered virtually this 6th day of December, 2024

Abuodha Nelson Jorum
Presiding Judge-Appeals Division