Noah Andrea v Frodak Services Limited & Butali Sugar Mills Limited

3. The appeal is based on the following grounds – i. THAT the honourable learned magistrate erred in law and fact in completely misapprehending the principles governing production of secondary evidence as contemplated by Section 68 and 69 of the Evidence Act, thereby arriving at an erroneous decision. ii. THAT the honourable learned magistrate erred in law and in fact in failing to consider the submissions and authorities made on behalf of the Appellant in arriving at her decision. iii. THAT the honourable learned magistrate erred in law and in fact in failing to find that documents in question are employment records of the respondents' employees which are ordinarily in possession of the respondents as employers. iv. THAT the honourable learned magistrate erred in law and in fact in considering issues that were neither raised, neither pleaded nor submitted upon by the Respondents. v. THAT the honourable learned magistrate erred in law and fact in predisposing her mind to a position favourable to the respondents against the Appellant and thereby arrived at a wrong decision. vi. THAT the learned trial magistrate erred in law and fact in dismissing the Appellant's application dated 3rd September 2024. vii. The Honourable learned magistrate misdirected herself in concluding that the appellant had not shown that the respondents are in possession of the original documents. ELRC KAKAMEGA APPEAL NO. E013 OF 2025 JUDGMENT 2 | PAGE

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viii. THAT the honourable learned magistrate erred in law and in fact in delivering a decision without addressing the facts and the issues and failing to give the ratio decidendi. 4.The appeal is opposed by the Respondents through Kigen W. J & Co. Advocates. 5.By consent, the court directed that the appeal be canvassed by way of written submissions. Mr Lubanga for the Appellant filed written submissions dated 16th March 2026 and Ms. Kigen for the Respondents filed written submissions dated 10th March 2026. II. SUBMISSIONS BY COUNSEL 6. Counsel for the Appellant submitted on three issues – Whether the learned magistrate erred in law in declining to compel production; Whether the document sought was necessary for the just determination of the suit; and, Whether the learned magistrate misapplied the principles governing notice to produce and discovery of documents. 7. It was submitted that the appeal arose from the ruling of the trial court delivered on 9th July 2025 in Butali SRMCC No. 308 of 2017, in regard to an application whereby the Appellant was seeking to compel the Respondents to produce documents relevant to the determination of the suit. The application was dismissed. ELRC KAKAMEGA APPEAL NO. E013 OF 2025 JUDGMENT 3 | PAGE

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8.Counsel submitted that the Appellant instituted the suit seeking damages for injuries sustained on 16th March 2015 while working as a loader at the 2nd Respondent’s factory. It was submitted that the Appellant’s case was that while applying pressure on a winch machine, a coiled wire snapped and a piece of metal struck the Appellant on the right side of the forehead. The Appellant attributed the accident to negligence of the part of the Respondent, including failure to provide a safe work environment, proper equipment, adequate supervision, and protective gear. 9.Counsel submitted that the Respondents denied liability and alleged, inter alia, that the Appellant was negligent, that the accident did not occur as alleged and, that he had failed to use the safety equipment provided. 10. It was submitted that the Appellant had issued a Notice to Produce dated 7th December 2017 seeking various employment and accidentrelated documents, including treatment notes, sick sheets, muster rolls, labour sheets, accident registers and NSSF and NHIF remittance records. Counsel contended that the documents were material in establishing the Appellant’s employment relationship, the circumstances surrounding the accident, and the Respondents’ compliance with statutory safety obligations. 11.Counsel submitted that the Respondents declined to produce the documents and that the trial magistrate consequently erred in ELRC KAKAMEGA APPEAL NO. E013 OF 2025 JUDGMENT 4 | PAGE

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declining to compel their production. Counsel argued that the documents were relevant and were ordinarily within the custody and possession of the employer, the 2nd Respondent. 12.On the purpose of discovery and production of documents, Counsel cited the decisions in ABN Amro Bank NV v Kenya Pipeline Company Ltd [2019] eKLR and Concord Insurance Co. Ltd v NIC Bank Ltd [2013] eKLR, that discovery is intended to ensure that documents relevant to the fair determination of a dispute are made available to the parties and the Court. Counsel argued that particularly in employment disputes, employment records are ordinarily in the custody of the employer and may therefore only be accessed by the employee through discovery or production. 13.Counsel further submitted that the Appellant’s application was anchored on Section 69 of the Evidence Act, which permits secondary evidence where the original document is in the possession or power of the adverse party and that the requisite notice to produce was served. It was contended that the Appellant had satisfied those requirements by duly serving the Notice to Produce, demonstrating that the documents were in the Respondents’ possession and establishing that the Respondents had declined to produce them. 14.Counsel submitted that the documents sought were crucial to the determination of the suit. It was submitted that the employment records, including labour sheets and muster rolls, would establish the ELRC KAKAMEGA APPEAL NO. E013 OF 2025 JUDGMENT 5 | PAGE

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Appellant’s employment and presence at the Respondents’ premises; the accident register and related records would assist in establishing whether and how the accident was reported; while the employment and safety records would assist in determining whether the Respondents had complied with their statutory obligation to provide a safe working environment and protective equipment. 15.Counsel further submitted that the Respondents ought not to benefit from withholding documents relevant to the dispute. Counsel cited the decisions in Kimalit v Laikipia University (Cause 44 of 2019) [2023] KEELRC 30 (KLR) and Lustman & Company (1990) Limited v Corporate Business Centre Limited & 4 others [2022] KEHC 42 (KLR) in support of the proposition that relevant documents in the possession of an employer should be produced to facilitate the fair determination of an employment dispute. 16.Counsel maintained that the application had been made in good faith and was intended to place before the Court all materials necessary for the just determination of the dispute, rather than to delay the proceedings. Counsel invoked Article 159 of the Constitution and submitted that the Court should administer justice without undue regard to procedural technicalities. 17.Counsel therefore submitted that the Appellant had demonstrated that the documents sought were in the Respondents’ custody, were relevant and necessary for the determination of the suit, and had not ELRC KAKAMEGA APPEAL NO. E013 OF 2025 JUDGMENT 6 | PAGE

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been produced despite service of the Notice to Produce. Counsel consequently urged the Court to find that the trial magistrate erred in law and fact in dismissing the application and allow the appeal as prayed. 18.On the other hand, Counsel for the Respondents submitted globally in opposing the appeal, asserting that the trial court properly directed itself on the applicable law and evidence and arrived at a sound and well-reasoned decision. 19.Counsel submitted that while the Appellant had issued a Notice to Produce for various documents, including treatment records, sick sheets, labour sheets, muster rolls, accident registers, work allocation sheets and NSSF and NHIF remittance records, the Respondents had, however, filed a Notice of Non-Admission to Production of the said documents. Counsel contended that despite being aware of the Respondents’ position, the Appellant took no further action during the pre-trial stage and proceeded with the hearing of his case. It was only after the Appellant had testified and been cross-examined that he sought for orders that culminated in the impugned ruling. 20.Counsel submitted that the application was therefore an afterthought and an attempt by the Appellant to fill gaps in his evidence after the commencement of the hearing. It was further submitted that the Appellant had failed to demonstrate that the documents sought were in the possession or power of the Respondents. ELRC KAKAMEGA APPEAL NO. E013 OF 2025 JUDGMENT 7 | PAGE

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21.On the applicability of Section 69 of the Evidence Act, Counsel submitted that the provision only permits secondary evidence where the original document is shown or appears to be in the possession or power of the person against whom it is sought to be produced. Counsel maintained that the Respondents could not be compelled to produce documents which were neither in their possession nor within their control. 22.Counsel cited the decision in Lunani & another (Suing as Executors of the Will of the Late Stephan Lunani Walela) v Carlsberg International Limited & 4 others [2023] KEELC 22190 (KLR) and submitted that a Notice to Produce presupposes the existence of the original document and its possession or control by the party against whom production is sought. Counsel further invoked the principle of lex non cogit ad impossibilia, submitting that the law does not compel a person to perform an impossibility. 23.Counsel further submitted that the Respondents expressly denied having custody of any of the Appellant’s treatment records. It was argued that the Appellant had not adduced evidence establishing that such records were in the Respondents’ possession or control. Counsel also referred to the Appellant’s evidence and the investigation report, including the fact that the Appellant’s name did not appear in the accident register, in support of the Respondents’ position. ELRC KAKAMEGA APPEAL NO. E013 OF 2025 JUDGMENT 8 | PAGE

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24.Counsel distinguished a Notice to Produce from an application for discovery and submitted that the Appellant could not invoke the principles applicable to discovery when no application for discovery had been made. With regard to the employment records, counsel submitted that the documents sought were already included in the Respondents’ list of documents and were available for production in accordance with the Respondents’ case. 25. Counsel consequently submitted that the Appellant had failed to satisfy the statutory requirements for invoking Section 69 of the Evidence Act and had not demonstrated any error on the part of the trial court. Counsel urged the Court to find that the trial court properly exercised its discretion in dismissing the application and to dismiss the appeal with costs. III. ISSUES FOR DETERMINATION 26.The background of this appeal is that the Appellant filed a Notice to Produce dated 7th December 2017 seeking the production of various documents, inter alia – Original treatment notes from Neema Clinic; Original sick sheet allegedly issued by the 1st Respondent; signed labour sheets, muster roll; accident register, work allocation sheets; statutory accident register; NSSF & NHIF remittance and duplicate gate pass (page 9 of the Record of appeal). ELRC KAKAMEGA APPEAL NO. E013 OF 2025 JUDGMENT 9 | PAGE

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27.The Respondents, in response to the Notice to produce, filed a Notice of Non - admission dated 20th December 2012 (Page 52 of the record). They contemporaneously filed a list of documents of even date. Copies of the listed documents were attached as per pages 2123 of the Record of Appeal. Later, they filed a supplementary list of documents dated 11th September 2023 (Page 25 of the Record of Appeal). Copies of those documents are on pages 27 to 34 of the Record of Appeal. 28.In the Appellant’s pre-trial questionnaire dated 13th September 2023, the Appellant ticked – NO- an indication that there was no need for inspection of any documents or copies filed by the Respondents (pages 36- 37 of the Record of Appeal). The suit before the trial court was set for hearing of the Appellant’s case, and he testified on 29th November 2023 (pages 84-86 of the Record of Appeal). 29.It was after the Appellant had testified that he filed the application for notice of motion dated 13th September 2023 (pages 41- 48 of the Record of Appeal), seeking the trial lower court to compel the Respondents to produce the documents they had sought under the notice to produce dated 7th June 2017 and to allow the Appellant to produce secondary documents pursuant to Section 69 of the Evidence Act. 30.In the supporting affidavit to the said application, at paragraph 8, the Applicant stated that the notice to produce was purely based on ELRC KAKAMEGA APPEAL NO. E013 OF 2025 JUDGMENT 10 | PAGE

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Section 69 of the Evidence Act to enable the Appellant rely on secondary evidence as an exception to the general rule of the Evidence Act that requires documents to be proved by primary evidence. The Appellant further argued that the documents in question are employment records that are ordinarily in the Respondents’ possession and their production was necessary for the just determination of his suit (Page 44 of The Record of Appeal). 31.The Respondents opposed the application, arguing that the application was filed as an afterthought after the Appellant had testified in a bid to fill-in gaps in his evidence. It was further argued that the application to produce secondary evidence was prejudicial to the Respondents, as the documents sought to be produced were forgeries. The Respondents asserted that they had objected to the production of some of the documents that the Appellant wished to produce during the hearing and thus the said application was purely an attempt to produce forged documents. 32.The trial lower court found that the Appellant had not proved that the Respondents were in possession of the original documents as for him to rely on Section 69 of the Evidence Act to produce secondary evidence (See page 77 of the record of Appeal). 33.In my considered view, the sole issue for determination is – Whether the trial magistrate correctly found and held that there was no ELRC KAKAMEGA APPEAL NO. E013 OF 2025 JUDGMENT 11 | PAGE

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evidence that the Respondents were in the possession of the original documents. 34.Section 69 of the Evidence Act provides that – Secondary evidence of the contents of the documents referred to in section 68(1)(a) of this Act shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, or to his advocate, such a notice to produce it as is required by law or such notice as the court considers reasonable in the circumstances of the case. 35.The above law enables a party to rely on secondary evidence at its disposal where the party in possession or custody of the original documents refuses to avail them after a notice to produce is given. 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. 36.In the Appellant’s list of documents dated 7th December 2017 (page 7 of the Record of Appeal), the Appellant listed various documents namely – a copy of a gate pass issued by the 1st Respondent; a copy of a sick sheet allegedly issued by the 1st Respondent; a copy of treatment notes from Neema Medical Clinic dated 16th March 2015; a medical report by Dr. Sokobe; two receipts; a demand letter; and his national identity card. ELRC KAKAMEGA APPEAL NO. E013 OF 2025 JUDGMENT 12 | PAGE

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37.Of the documents listed above, only three were listed in the notice to produce – the sick sheet, the treatment notes, and the gate pass. 38.The Respondents have stated that they do not have the original sick sheet produced as a copy by the Appellant, they cite the same as a forgery. They also stated that they were not in possession of the treatment notes from Neema Clinic as they never were supplied to them. The Respondents did not indicate whether there is an original gate pass. 39.The court returns that there is no evidence by the Appellant that the Respondents held the original treatment notes from Neema Clinic, which is a distinct entity from the Respondents. The Appellant should have called the maker of the treatment notes to prove and produce the same. The Respondents stated that the copy of sick-sheet produced by the Appellant is a forgery, as pleaded in the defence that is yet to be prosecuted. Ipso facto, 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. 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. 40.As for the gate pass, the Appellant did not allege or prove that the Respondents held a duplicate. ELRC KAKAMEGA APPEAL NO. E013 OF 2025 JUDGMENT 13 | PAGE

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41.As relates to the other employment records requested in the Notice to Produce – muster rolls, labour sheets, accident registers, and NSSF and NHIF remittance records – the Appellant did not avail any copies of the said documents to qualify his reliance on Section 69 of the Evidence Act. 42.The Respondents, in their list of documents and supplementary list of documents, listed the payroll register, the accident register, the provision register, engagement contract agreement, second medical report, and an investigation report as the documents they were to rely on in their defence. The said list of documents was available before the Appellant testified on 29th November 2023. The Appellant did not seek to interrogate the original documents or the copies listed by the Respondents and proceeded to testify. The Appellant will have the opportunity to cross-exam the Respondents’ witness(es) on these documents during the defence hearing. They are employment records. 43.The court returns that by seeking the production of the documents after his testimony, the Appellant is seeking to fill the gaps in his testimony, considering that he has already been cross-examined by the Respondents’ counsel. Moreover, the trial court (page 77 of the record) found that the Appellant had not proved that the Respondents were in possession of the original documents listed in the Notice to ELRC KAKAMEGA APPEAL NO. E013 OF 2025 JUDGMENT 14 | PAGE

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Produce pursuant to Section 69 of the Evidence Act to enable him to produce them as secondary evidence. 44.The Court upholds the said finding on the premise that the documents sought to be produced as secondary evidence, being the treatment notes from Neema Clinic, the sick sheet, and the duplicate gate pass, which the Appellant had copies of, could not be proved to have been in the Respondents’ custody. Moreover, considering the Respondents’ witness George Onyango (operations manager)’s witness statement (Page 26 of the record of appeal) raising the issue of the authenticity of the said documents, the Court is satisfied that the lower trial court applied its mind in finding and holding that the Appellant had not proved that the Appellant was in possession of the original documents. 45.Consequently, the ruling of the trial court delivered on 9th July 2025 shall be upheld, and this ruling shall apply, mutatis mutandis, in Kakamega Appeal Nos. E014, E015, & E016 all of 2025. VI. ORDERS (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. ELRC KAKAMEGA APPEAL NO. E013 OF 2025 JUDGMENT 15 | PAGE

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(iii) Each party shall meet own costs in this appeal. DELIVERED VIRTUALLY, DATED, AND SIGNED AT KAKAMEGA THIS 1ST DAY OF OCTOBER 2026. .................................... DAVID NDERITU JUDGE ELRC KAKAMEGA APPEAL NO. E013 OF 2025 JUDGMENT 16 | PAGE

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