Admissibility of secret recordings in disciplinary hearings and court proceedings

In today’s digital age, where recordings can be made discreetly with a click, questions surrounding the legality and admissibility of secret recordings have gained prominence. Whether in disciplinary hearings or court proceedings, the tension between privacy rights and the administration of justice often emerges when such evidence is brought forward.

A secret or covert recording is an unauthorized audio or audio-visual recording without the knowledge or consent of the other participants in the conversation. The general rule is that a secret recording is considered illegally obtained evidence as it is procured without the knowledge and express consent of the party(ies) involved.

Under Article 31 of the 2010 Constitution, the right to privacy protects individuals from unwarranted intrusion, including secret surveillance of private communications. However, Article 50(4) creates a balancing test, allowing the court to admit otherwise illegally obtained evidence if its relevance and impact on justice outweigh privacy concerns.

In the past, the courts have set out exemptions to the inadmissibility of secret recordings in view of Article 50(4) above. For instance, in John Muriithi & 8 others vs. Registered Trustees of Sisters of Mercy (Kenya)t/a “The Mater Misericordiae Hospital & another [2018] eKLR, the Court acknowledged that the relevance of the evidence to the facts in issue can outweigh the method the evidence was obtained, suggesting that privacy may be secondary if the evidence serves a significant legal purpose.

Similarly in Njenga v Dib Bank Kenya Limited (Cause E400 of 2020) [2023] eKLR, the Court held that the fact that evidence is shown to have been acquired irregularly is not an automatic and absolute bar to its admission if it is relevant. The party seeking to exclude the evidence needs to demonstrate that admission of the evidence will prejudice the fair hearing of the case or that it will otherwise be detrimental to the administration of justice.

On the other hand, the Data Protection Act 2019 provides more clarity on the right to privacy by emphasizing that data, including recordings, must be collected with the subject’s consent. It specifically provides that: Data collected indirectly requires the consent of the data subject (Section 28(2)(c)); and as far as practicable, before collecting data, the data subject be informed of the fact that personal data was being collected (see Section 29(b)).

In Shakunt Rajnikant Shah vs Bhupendra Motichand Shah t/a John Cumming & Company & Another [2021] eKLR the Court declined the Petitioner’s request to include secretly recorded audio recordings as evidence because the Petitioner was unable to prove that the Respondents were informed that the discussion at the meeting was being recorded. The Court must be satisfied that there is a legitimate reason to override privacy protection before admitting secretly obtained evidence.

The Court, however, noted that the objecting party can waive their objection to the recording being adduced in evidence if they have listened to it and if it represents an accurate recording of what transpired.

Additionally, in the recent case of Mbugua v Echo Network Africa (Employment and Labour Relations Petition E064 of 2022) [2024] KEELRC 343 (KLR) (23 February 2024), the Respondent sought to use an audio recording of a tele-conversation between the Petitioner and a colleague to justify her termination. However, the Respondent failed to show how it accessed the conversation. The Court held that private communications are confidential and require express consent from the owner. Since the Petitioner’s consent was not obtained, the Court found that her right to privacy had been violated.

Another exception to the rule on the inadmissibility of secret recordings is “participant recording.” The Courts have, in some cases, held that a recording done by a witness who was present at the time when the recording was done is admissible in evidence. This was the case in Kinyanjui v Scania East Africa Limited (Employment and Labour Relations Cause E609 of 2020) [2023] KEELRC 1627 (KLR) (15 June 2023) (Ruling) where the Respondent applied for the Court to exclude in evidence an audio recording of a conversation that was secretly recorded by the Claimant. The Court, however, held that the evidence was admissible in evidence in the case because the Claimant was a participant in the disciplinary hearing and he was the subject matter of the recorded proceedings.

In summary, the admissibility of secret recordings is far from a settled issue and requires a delicate balance between privacy rights and the administration of justice. While secret recordings are generally considered illegal due to privacy protections under the Constitution and the Data Protection Act, the Courts have made exceptions based on relevance and fairness. The admissibility of such recordings remains highly contextual, and consent plays a critical role, particularly in light of privacy rights. It is, therefore, important for both employers and employees to be mindful of the growing emphasis on consent, and ensure to obtain it before any recording is made.

Researched and compiled by Isabel Gakuo, Legal Associate. For further advice on any matters raised, please feel free to contact Isabel.

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