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ELRCPartially AllowedNot stated in the judgment (Petition dated 23rd April 2024)

Yoya v Kenyatta International Convention Center & 2 others; Mwaura (Interested Party) (Employment and Labour Relations Petition E060 of 2024) [2025] KEELRC 967 (KLR)

High Court of Kenya
27 March 2025
6,324 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~25 min to read original · ~4 min brief

The bottom line

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Kenya's High Court ruled that documents allegedly obtained improperly can still be used in court if they are relevant, especially when the case serves the public interest.

What this practically means

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Executive summary

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This interlocutory ruling by the High Court at Nairobi (Hellen Wasilwa J) determined two concurrent applications arising from a Petition dated 23rd April 2024 challenging the recruitment and gazettement of James Mbugua Mwaura as Chief Executive Officer of the Kenyatta International Convention Centre. The Respondents, through the Attorney General, sought expungement of four documents relied on by the Petitioner - correspondence between the KICC Chairperson, the Cabinet Secretary for Tourism and the Head of Public Service - arguing the documents were confidential, never copied to the Petitioner, and obtained without consent or through the Article 35/Access to Information Act procedure. They invoked Article 50(4), Article 31 (privacy), Section 37 of the Data Protection Act, 2019, and Supreme Court authority including Mue and Kenya Railways v Okoiti. The Interested Party supported the expungement application. The Petitioner opposed, asserting the documents concerned a public recruitment process involving public funds; that Section 37 applies only to commercial use of personal data; and that under the Ombija line of authority relevance, not the manner of acquisition, governs admissibility. The Petitioner cross-applied for production of all recruitment records. The court held that Section 37(1) was inapplicable as the data was not obtained for commercial use, followed Ombija, and declined the expungement application. It found the cross-application superfluous but valid for documents not already filed, and ordered costs to be in the Petition.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the documents relied on by the Petitioner, allegedly obtained without consent or due process, should be expunged from the record under Article 50(4) of the Constitution
  2. 2.Whether Section 37(1) of the Data Protection Act, 2019 renders the impugned documents inadmissible
  3. 3.Whether the Petitioner's cross-application for production of recruitment documents should be allowed

Key legal issues

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01

Whether documents allegedly unlawfully obtained should be expunged under Article 50(4) of the Constitution

Holding

The application to expunge was declined; admission of the documents would not render the trial unfair or compromise justice

Reasoning

The court noted the Petitioner conceded obtaining the documents but argued Article 50(4) excludes only evidence whose admission would render the trial unfair. Relying on the Ombija decision, the court held admissibility turns on relevance, not the manner of acquisition, and found no unfairness established.

p. 12
02

Whether Section 37 of the Data Protection Act, 2019 renders the documents inadmissible

Holding

Section 37(1) applies only to commercial use of personal data; the impugned use was not commercial, so the section does not apply

Reasoning

The court quoted Section 37(1) and observed that its restriction bites only where personal data is used for commercial purposes. Since the Petitioner obtained and used the data for public-interest litigation on a public recruitment process, the statutory bar was inapplicable.

p. 12
03

Whether the Petitioner's cross-application for production of recruitment documents should be granted

Holding

The cross-application was found superfluous but valid in respect of documents not already filed; costs in the Petition

Reasoning

Having held the impugned documents admissible, the court found the production application unnecessary as to documents already in the Petitioner's possession, but preserved it as valid for documents not yet filed, leaving costs to be determined in the Petition.

Legal principles established

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  • Admissibility of evidence is determined by relevance, not by the manner in which it was obtained
  • Section 37(1) of the Data Protection Act restricts use of personal data only for commercial purposes
  • Article 50(4) excludes evidence obtained in violation of rights only where its admission would render the trial unfair or be detrimental to the administration of justice

Court orders

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  1. 1.The Respondents' application dated 12th June 2024 seeking expungement of documents is declined/dismissed
  2. 2.The Petitioner's cross-application dated 11th December 2024 is found superfluous but valid in respect of documents not already filed by the Petitioner
  3. 3.Costs of the applications shall be in the Petition

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Petition filed under Article 258(1) and (2)(c) of the Constitution; interlocutory applications under the court's inherent jurisdiction

Relief refused

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Expungement of the four impugned documents from the record

The court found the documents admissible; Section 37(1) of the Data Protection Act does not apply because the data was not obtained for commercial use

p. 12

Production orders against the Respondents in respect of documents already in the Petitioner's possession

The cross-application was superfluous as to documents already filed; it was found valid only for documents not already filed

Costs

Costs of the application shall be in the Petition.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Having found as above, it is my finding that the application by the Respondents seeking to strike out the documents filed by the Petitioner is not merited and is declined.
p. 12Dismissal of expungement application
I find the application superfluous but in any case valid in case of documents not already filed by the Petitioner. Costs of the application shall be in the Petition.
Disposition on cross-application and costs (final orders)
The current data illegally obtained is not for commercial use as such it cannot fall under the restriction placed under section 37 (1) of the Data Protection Act.
p. 12Application of Data Protection Act, Section 37
all admissible evidence is relevant notwithstanding the manner in which it was obtained
p. 12Admissibility of illegally obtained evidence

Issues in the judgment

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minor

The Petitioner's name is never stated in the judgment; the parties are referred to only by role

minor

The case/petition number is not stated anywhere in the judgment

material

The disposition on the cross-application is ambiguous: it is called superfluous yet simultaneously 'valid', and no express production orders are issued

minor

The judgment is internally inconsistent as to the principles governing illegally obtained evidence: it follows Ombija (relevance governs admissibility) while the respondents and interested party cited Supreme Court authority (Mue; Kenya Railways v Okoiti) that unlawfully obtained information is inadmissible, without distinguishing those cases

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Yoya v Kenyatta International Convention Center & 2 others; Mwaura (Interested Party) (Employment and Labour Relations Petition E060 of 2024) [2025] KEELRC 967 (KLR)", Case Analysis (2025). Not stated in the judgment (Petition dated 23rd April 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/967/eng@2025-03-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.