Ogwaro v SGA Security Limited (Cause E871 of 2022) [2025] KEELRC 264 (KLR)
The bottom line
#A Kenyan employment court ruled that documents an employer gives to an employee belong to that employee and can be shared in court.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the documents filed and served by the Claimant (the resignation letter, acknowledgment letter and certificate of release of Zachariah Magadi Isanda) were illegally obtained in violation of the Evidence Act, the right to privacy under article 31(d) of the Constitution, the Hildebrand rules and article 50(4)
- 2.Whether the said documents should be expunged and/or struck out from the court record
- 3.Whether the Respondent should be granted leave to amend its statement of Response to include a counterclaim against the Claimant for Kshs. 6,553,326.96/-
Key legal issues
#Admissibility of documents obtained from a third-party former employee who shared them willingly
The documents are admissible and will not be expunged; no right was violated and their admission does not render the trial unfair.
The court found that once the Respondent issued the documents to the former employee they became his private documents which he could share freely. Applying article 50(4) and the John Muriithi decision that illegally obtained evidence is admissible so long as it is relevant and does not affect the fairness of the trial, the court held that there was no violation of any right since the documents were obtained willingly, and they were relevant to proving the Claimant's assertion that other officers were paid gratuity.
Whether the Respondent should be granted leave to amend its statement of Response and file a counterclaim for Kshs. 6,553,326.96/-
Leave to amend is granted; the counterclaim will be determined at the hearing and the Claimant has corresponding leave to respond.
Relying on Rule 14(6) of the ELRC (Procedure) Rules 2016 and the principles in Joseph Ochieng & 2 Others v First National Bank of Chicago, the court held that amendments may be made at any stage in good faith where no uncompensatable injustice results. The investigations revealing the loss were conducted after the suit was filed, and the counterclaim fell within the three-year limitation period under section 90 of the Employment Act since the cause of action arose in November 2021.
Legal principles established
#- Once an employer issues documents to a former employee, those documents become the employee's private documents and the employee is free to share them as he wishes; such documents obtained willingly are not illegally obtained evidence.
- Under article 50(4) of the Constitution, evidence obtained in violation of a right is excluded only if its admission would render the trial unfair or be detrimental to the administration of justice; relevant evidence obtained willingly from its owner is admissible.
- Amendment of pleadings can be allowed at any stage of the proceedings provided it is made in good faith, timeously, and no injustice incapable of compensation by costs is caused to the other party, and the other party has a corresponding right to amend.
Court orders
#- 1.The Respondent's application dated 14th March 2024 is dismissed on the issue of expunging the Claimant's documents; the documents are deemed properly on record
- 2.The Respondent is granted leave to file an amended Response to Claim and a Counterclaim against the Claimant for the loss of Kshs. 6,553,326.96/-
- 3.The Claimant is granted corresponding leave to respond to the Counterclaim
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act and the Constitution (application brought under articles 27(1), 31, 35 and 50(4) of the Constitution of Kenya, 2010 and the Data Protection Act No. 24 of 2019)
Relief refused
#Expungement and/or striking out of the Claimant's documents filed and served on 16/10/2023 (resignation letter dated 01/01/2019, acknowledgment letter dated 11/10/2019 and certificate of release dated 02/03/2020)
The documents were obtained willingly from the former employee, who became their owner; their admission violates no right and would not render the trial unfair, and they are relevant to the Claimant's assertion that other officers were paid gratuity
Costs
The judgment makes no order as to costs; costs are not addressed in the final orders.
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.
In the upshot the Application partly succeeds on the issue of leave to file an amended Response to Claim and Counterclaim and fails on the issue of expunging the documents introduced by the Claimant and the same are deemed properly on record.
it is the Court's view that once the Respondent gave the documents to the former employee the same became his private documents and he was free to share them as he wishes.
Similarly in this case there is no violation of any right in admitting the documents in question more so where they were obtained willingly.
From the foregoing, the court is of the opinion that an amendment can be done at any time of the proceedings.
The counterclaim is subject to limitation period of 3 years as per section 90 of the Employment Act. The cause of action arose in November,2021 when the Claimant resigned and the application filed in March 2024 which is within the limitation period.
Issues in the judgment
#The case number/title of the suit and the parties' full names (other than the Claimant) are not stated in the judgment extract; the Respondent is referred to only by role.
The judgment is signed by a judge styled 'Presiding Judge-Appeals Division' although this is a first-instance application, with no indication of any appeal being before the court.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ogwaro v SGA Security Limited (Cause E871 of 2022) [2025] KEELRC 264 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/264/eng@2025-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.