Adan v Premier Bank Kenya (Cause E455 of 2024) [2025] KEELRC 613 (KLR)
The bottom line
#A Kenyan employment court refused to throw out an employee's secret meeting recording, ruling the bank challenged it too early and disputes over recordings belong at trial.
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 Notice of Motion seeking striking out of paragraph 13 of the Statement of Claim, paragraph 12 of the Claimant's witness statement and the audio recording annexed as 'MAR-9' was premature
- 2.Whether the audio recording was obtained in violation of the Respondent's Head of Human Resources' right to privacy and should be expunged from the record
Key legal issues
#Whether an application to expunge an audio recording for breach of privacy can be made before the pre-trial conference
The application was premature; discovery disputes concerning electronic recordings must first be raised at a mandatory pre-trial conference under Rule 40, and any disagreement dealt with under Rule 42
Rule 40(1) of the ELRC (Procedure) Rules 2024 is mandatory: a pre-trial conference must be held before the Court can be moved on discovery of documents or electronic recordings. Rule 42 then governs disagreement on discovery. The Respondent had not invited the Court to hold a pre-trial conference, so the Motion was premature.
Whether the impugned portion of the audio recording should be expunged at the interlocutory stage
No; any private conversation portion can be redacted at trial when the recording is admitted, with full participation of parties
The Court was not told how a private telephone conversation occurred within official deliberations; that can only be determined at trial. Redaction of the offending portion is possible while admitting the rest. Reviewing the recording at the interlocutory stage to pick out the impugned part would amount to a miscarriage of justice.
Legal principles established
#Court orders
#- 1.The Notice of Motion dated 29th October, 2024 is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution of Kenya 2010 (ELRC as a court of the status of the High Court)
Relief refused
#Striking out and expunging paragraph 13 of the Statement of Claim, paragraph 12 of the witness statement of Miriam Mohamed Aden, and the audio recording marked 'MAR-9'
The application was premature as pre-trial directions under Rule 40 had not been taken, and expunging the recording would require the Court to review the recording in the absence of a trial, amounting to a miscarriage of justice
Costs
The application was dismissed with costs to the Claimant/Respondent.
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 Notice of Motion dated 29th October, 2024 is devoid of merit, and is hereby dismissed with costs.
Rule 40(1) is couched in mandatory terms, making the holding of a pre-trial conference mandatory before the Court can be moved regarding discovery of documents and electronic recordings and/or admissibility of the same.
Where admissible under the relevant statutory provisions, electronically recorded evidence can only be reviewed by the Court during a trial, with full participation of all parties to the suit, where the suit in which such evidence is presented is defended.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Adan v Premier Bank Kenya (Cause E455 of 2024) [2025] KEELRC 613 (KLR)", Case Analysis (2025). Notice of Motion dated 29th October, 2024 in a Memorandum of Claim dated 13th June, 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/613/eng@2025-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.