Mary Nduta Kagumu v National Cement Company Ltd
The bottom line
#A Kenyan court ruled that secretly recorded work conversations can be used as evidence if the recorder took part in the conversation.
What this practically means
#Executive summary
#Key legal issues
#Admissibility of audio recordings under the Evidence Act
Electronic and digital material is admissible; weight depends on reliability, integrity and identification of the originator under section 78A, and a certificate under section 106B(4) is required
The court set out sections 78A and 106B of the Evidence Act governing admissibility of electronic evidence and the certificate requirements. It noted the Claimant's certificate had already been upheld in an earlier ruling as meeting the statutory threshold, and the Respondent filed no expert report to substantiate claims of editing or manipulation.
Burden of proving illegal procurement of recordings
The Respondent bore and failed to discharge the burden of proving the recordings were illegally obtained
Relying on the legal burden principle in Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another and Sections 107, 108 and 109 of the Evidence Act, the court held that mere lack of consent did not prove unlawful interception or surveillance. The Claimant was a participant in the conversation and recorded it to preserve evidence.
Privacy rights versus admissibility of secretly recorded conversations
Article 31 privacy rights are relevant but non-consent alone does not establish infringement warranting expungement
The court quoted Article 31 of the Constitution on privacy of communications but held that the Respondent's established non-consent was insufficient to prove infringement of privacy or breach of the Data Protection Act, since the Claimant was herself a participant in the recorded conversation.
Abuse of process by renewing a decided application
The Respondent's renewed expungement application, after a similar motion was dismissed on 6th November 2025, was an abuse of court process
The court noted it had already ruled on 6th November 2025 that rejecting the audios without appreciating their source and content would be unfair, and directed the hearing to proceed. Renewing the application orally after the Claimant testified was a delaying tactic; the proper remedy was appeal.
Legal principles established
#- A party asserting that evidence was illegally obtained bears the legal burden of proving it under Sections 107, 108 and 109 of the Evidence Act
- Lack of consent to a recording alone is insufficient to prove infringement of the right to privacy or breach of the Data Protection Act
- A participant in a conversation who records it for preservation of evidence in an anticipated legal dispute does not thereby obtain it unlawfully
- Renewing an application already decided by the court amounts to an abuse of court process; the remedy lies in appeal
Court orders
#- 1.The application to expunge the audios is unmerited and is rejected
- 2.The case will proceed to its logical conclusion on 30th September 2026
- 3.Costs will be in the course
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment cause (ELRC Cause No. E036 of 2024); no specific constitutional provision invoked for jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mary Nduta Kagumu v National Cement Company Ltd", Case Analysis (2026). ELRC Cause No. E036 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2677/eng@2026-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.