Noah Andrea v Frodak Services Limited & Butali Sugar Mills Limited
The bottom line
#A Kenyan employment appeal failed because the worker couldn't prove his former employer actually held the original documents he wanted produced 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 trial magistrate correctly found and held that there was no evidence that the Respondents were in the possession of the original documents
Key legal issues
#Whether the trial magistrate erred in declining to compel production of the original documents under Section 69 of the Evidence Act
No error; the Appellant failed to prove the Respondents possessed the originals, and the Respondents denied possession and questioned authenticity
Section 69 permits secondary evidence only after notice to produce to the party holding the original. The treatment notes belonged to Neema Clinic, a distinct entity; the sick sheet was alleged a forgery; no duplicate gate pass was proved; and no copies of the employment records were availed. Production could not be ordered of documents not shown to be in the Respondents' possession or control.
Whether the application to compel production was an afterthought to fill gaps in evidence
Yes; the Appellant sought production only after testifying and being cross-examined, despite having declined inspection at pre-trial
The Appellant ticked 'NO' in his pre-trial questionnaire indicating no need for inspection, proceeded to testify, and only then filed the application. The court held this was an attempt to fill gaps in his testimony, and he would still have the opportunity to cross-examine the Respondents' witnesses on the documents during the defence hearing.
Legal principles established
#- Secondary evidence under Section 69 of the Evidence Act is only available where the party proposing to give it has served a notice to produce on the party in whose possession or power the document is
- A party cannot be compelled to produce a document whose unavailability is admitted or whose authenticity is questioned
- A party relying on Section 69 must show it has copies of the documents it seeks to rely on
Court orders
#- 1.The appeal fails in its entirety
- 2.The Ruling of the trial court delivered on 9th July 2025 is hereby upheld
- 3.This judgment shall apply mutatis mutandis to Kakamega Appeal Nos E014, E015 & EO16 all of 2025
- 4.Each party shall meet own costs in this appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Butali Magistrates' Court
- ELRC No. 308 of 2017
- Jurisdiction invoked
- First appeal to the ELRC from a subordinate court ruling (Employment and Labour Relations Court procedure); no specific constitutional provision invoked
- Consolidated with
- Kakamega Appeal Nos. E014, E015 & E016 all of 2025 (judgment to apply mutatis mutandis)
Relief refused
#Appeal to set aside the lower court ruling dismissing the Notice of Motion compelling production of documents
Appellant failed to prove the original documents were in the Respondents' possession or power as required by Section 69 of the Evidence Act
Costs
Each party shall meet own costs in this appeal.
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.
It follows that the trial magistrate could not have ordered the Respondents to produce the treatment notes and the sick-sheet which were not demonstrated to be in their possession or control.
if a document is said to be unavailable, or where the adverse party or its agent has admitted its unavailability or questions its authenticity, such a party cannot be ordered to produce the same.
The party seeking to have the original documents availed or produced is required to show that it has copies of the documents it seeks to rely on.
(i) The appeal fails in its entirety.
(ii) The Ruling of the trial court delivered on 9th July 2025 is hereby upheld. This judgment shall apply mutatis mutandis to Kakamega Appeal Nos E014, E015 & EO16 all of 2025.
Issues in the judgment
#Conflicting dates for the Notice to Produce
Notice of Non-admission dated 20th December 2012, predating the 2017 Notice to Produce
Conflicting dates for the Notice of Motion
Paragraph 44 misstates the party whose possession was to be proved
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Noah Andrea v Frodak Services Limited & Butali Sugar Mills Limited", Case Analysis (2026). ELRC Appeal No. E013 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2751/eng@2026-10-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.