Osman v Cabinet Secretary, Ministry of State for Defence and Chairperson, of the Defence Council & another (Cause 32 of 2014) [2024] KEELRC 584 (KLR)
The bottom line
#Kenya's Employment Court allowed a worker's photocopies as evidence because the employer, holding the originals, never objected for ten years.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether photocopy documents (HAO 1, HAO 2, HAO 3) not certified and not original should be expunged from the record under Sections 68(2)(c), 80(1) and 81 of the Evidence Act
- 2.Whether the Claimant has laid a basis for reliance on secondary evidence
Key legal issues
#Admissibility of photocopy/secondary evidence of employment records
The objection under Sections 68(2)(c), 80(1) and 81 of the Evidence Act was declined; the photocopies were admitted as part of the Claimant's employment records.
The documents comprise certificates of service and discharge required by statute, Part II Orders and a statutory notice. The Respondents are custodians of the originals under Section 74 of the Employment Act, conceded the employment and discharge in their Statement of Response, had notice of the photocopies since 2014, and never produced originals or contradicting documents. Expunging the documents would leave the Claim unsupported in circumstances where the Respondents themselves concede the underlying facts.
Abuse of process through serial technical objections
The application was a second attempt to derail or delay the long-pending Claim after the earlier limitation objection failed, and was untenable.
The Respondents had already raised an unsuccessful objection on limitation. They raised the admissibility objection informally at the hearing and only formally by application dated 5th October 2023, some ten years after filing, without contesting the documents in the intervening period. This 'objection in instalments' approach ran contrary to the principle objective of the Court under Section 3 of the E&LRC Act.
Legal principles established
#- A party that is the custodian of employment records and has not contested photocopied documents since filing, and which produces no original or alternative documents, cannot successfully object to production of the photocopies on grounds of admissibility under the Evidence Act.
- The Court's overriding objective of just, expeditious, efficient and proportionate resolution of disputes outweighs frivolous technical objections.
Court orders
#- 1.The Application filed by the Respondents dated 5th October 2023 is declined
- 2.The Claim to be fixed for further hearing on an accelerated basis
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 3 of the Employment and Labour Relations Court Act
Relief refused
#Expungement of the Claimant's photocopy documents HAO 1, HAO 2 and HAO 3 from the record
The documents are part of the Claimant's employment records of which the first Respondent is custodian; the Respondents never contested them since 2014 and produced no original or alternative documents to contradict them
Costs
No order as to costs was made in the judgment.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Application filed by the Respondents dated 5th October 2023 is declined.
The Claim to be fixed for further hearing on an accelerated basis.
The Court would readily expunge the photocopy documents, if the Respondents brought the original documents in their custody, before the Court.
They have opted to object to the Claim in instalments, when it suits them.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Osman v Cabinet Secretary, Ministry of State for Defence and Chairperson, of the Defence Council & another (Cause 32 of 2014) [2024] KEELRC 584 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/584/eng@2024-03-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.