Leland I. Salano v Intercontinental Hotel (Cause 805 of 2012) [2013] KEELRC 536 (KLR)
The bottom line
#Kenya's Industrial Court allowed a dismissed employee to use internal company documents as evidence because the hotel failed to protect or mark them as confidential.
What this practically means
#Executive summary
#Key legal issues
#Definition of confidential documents in an employment relationship
Confidential documents are those containing secret information not generally known, whose unauthorized disclosure could damage the employer's essential business interests, especially where reasonable steps limit access and confidentiality is expressly identified
The Court set out criteria: release would damage the employer's business; breach undertakings to respect confidentiality; breach statutory restrictions; cause financial loss or improper gain; or impede effective management. Documents may carry identifying marks of confidentiality and are protected when the owner limits access to employees and unauthorized persons. The Court distinguished confidentiality (treatment of identifiable data disclosed in trust) from privacy (control over sharing of oneself).
Whether Salano could use the contested documents in his unfair termination claim
Yes — the employer failed to prove the documents were confidential or illegally obtained; the Claimant legitimately encountered them as IT Manager and shared them only with his Advocates
Applying guidelines from case law, the Court found no written contract, no confidentiality policy, no marks of confidentiality, no restricted access or passwords, and no trade secrets at risk. The documents were relevant to the claim, which included elements of Kenyanisation and race discrimination. The Claimant's constitutional right of access to information under Article 35 and right to be free from unfair labour practices outweighed the employer's unsubstantiated privacy and fair trial objections.
Reliance on the Baseline Architects High Court decision
The decision was argued out of context — it dealt with public-sector confidentiality and public interest, unlike this private employment dispute
The Court held that confidentiality within the public sector follows different principles, including statutory standards such as the Official Secrets Acts. The Warsame ruling concerned disclosure of documents injurious to the public and the duty of public officers to safeguard public documents — not disclosure of an employer's documents by a private employee. It was therefore distinguished.
Legal principles established
#- Admissibility of evidentiary materials before the Industrial Court is a matter of discretion; the Court is not strictly bound by rules of evidence
- The employee's obligation of confidentiality after termination of employment is less onerous than during employment
- Documents are confidential where unauthorized disclosure could damage the essential interests of the employer's business
Court orders
#- 1.The application dated 16th January 2013 is rejected
- 2.Parties to agree on a suitable hearing date for the main dispute at the Court Registry
- 3.Costs in the cause
- Jurisdiction invoked
- Industrial Court Act, No. 20 of 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Leland I. Salano v Intercontinental Hotel (Cause 805 of 2012) [2013] KEELRC 536 (KLR)", Case Analysis (2013). Industrial Court Cause — Statement of Claim filed 14th May 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/536/eng@2013-07-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.