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ELRCPartially AllowedNot stated in judgment· [2025] KEELRC 2862 (KLR)

Muchemi v Muchemi (Cause E347 of 2025) [2025] KEELRC 2862 (KLR)

Employment and Labour Relations Court
21 October 2025
SRStella Rutto
2,155 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court threw out secret recordings of settlement talks, confirming that what you say while negotiating a separation cannot be used against you.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nairobi, delivered by Stella Rutto, Judge, on 21st October 2025, on the Respondent/Applicant's Notice of Motion dated 16th June 2025. The Applicant sought to strike out and exclude audio recordings made covertly by the Claimant during a telephone call of 13th September 2024 and a meeting of 14th September 2024 with Mr. Robert Burnet, Chairman of the Applicant's Board, and to expunge the Claimant's Further Supplementary List and Bundle of Documents dated 28th April 2025. The Applicant contended the recordings breached Mr. Burnet's rights to privacy under Articles 31(d), 50(4) and 28 of the Constitution and the Data Protection Act, and that their admission would be prejudicial to a fair trial. The Claimant opposed, arguing she was a participant in the conversations, that Mr. Burnet was a non-party whose rights the Applicant could not invoke, and that the recordings were relevant and of probative value. The Court framed a single issue: the admissibility of the recordings. Reviewing the recordings, it found the parties were engaged in bona fide settlement negotiations exploring mutual separation. Applying Article 159(2)(c) and Article 50(4), the Court held that parties must be able to negotiate candidly without fear of later use in court, and that admitting the recordings would prejudice a fair trial. The Motion was allowed, the recordings expunged from the record, and costs were ordered to be in the cause.

Key legal issues

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Admissibility of covertly made audio recordings of settlement discussions

Holding

The recordings were inadmissible and were expunged from the record because they were made during confidential, bona fide settlement negotiations and their admission would prejudice a fair trial.

Reasoning

The Court reviewed the recordings and found the parties were engaged in candid settlement negotiations exploring mutual separation. Article 159(2)(c) obliges courts to promote alternative dispute resolution, which requires parties to negotiate freely without fear that statements will later be used in court. Admitting such recordings would defeat the spirit of out-of-court settlement and would be prejudicial to a fair trial under Article 50(4).

p. 5

Legal principles established

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  • Under Article 50(4), evidence obtained in violation of a Bill of Rights right is excluded if its admission would render the trial unfair or be detrimental to the administration of justice; where covert recordings were made during confidential settlement discussions, their admission would be prejudicial to a fair trial and they are inadmissible.
  • Covert recordings are inadmissible where they are irrelevant, made by a third party, unverifiable as to authenticity, or prejudicial to a fair trial.

Court orders

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  1. 1.The Applicant's Notice of Motion dated 16th June 2025 is allowed
  2. 2.The audio recordings contained in the Claimant's Supplementary List and Bundle of Documents dated 28th April 2025 are expunged from the record
  3. 3.Costs shall be in the cause
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court over an interlocutory application in a labour dispute (Employment and Labour Relations Court Act; interim applications under the Civil Procedure Act/Rules)

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, "Muchemi v Muchemi (Cause E347 of 2025) [2025] KEELRC 2862 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2862/eng@2025-10-21

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