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ELRCOtherNot stated in the judgment (Notice of Motion application dated 28th October 2019)· [2021] KEELRC 261 (KLR)

Nrg Media Limited v Charles Karumi Maina [2021] KEELRC 261 (KLR)

Employment and Labour Relations Court of Kenya
29 November 2021
3,156 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court refused to enforce a radio presenter's non-compete clause because the employer used the wrong procedure, meaning employers must file a proper suit.

What this practically means

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Executive summary

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The Applicant, operator of NRG Radio, moved the Employment and Labour Relations Court by Notice of Motion dated 28th October 2019 seeking an injunction restraining its former radio presenter, the Respondent, from working for or identifying with any competing radio station or business in Kenya during the three-month non-compete period under clause 15.1 of their employment contract dated 2nd August 2018, with the Applicant paying his salary during that period. The Applicant asserted it had invested heavily in the Respondent's training and brand, that he resigned on 9th September 2021 with three months' salary in lieu of notice, and that he had joined competitor Homeboyz Radio in breach of the clause, while reposing trade secrets and confidential programming information in him. The Respondent opposed, contending the clause was unreasonable, ambiguous and unenforceable, that no loss was demonstrated, and that the orders would deny his livelihood; he relied on authorities holding overbroad restraint clauses void. Counsel for the Applicant invoked section 2 of the Contract in Restraint of Trade Act Cap 24 and authorities on sanctity of contract and estoppel. The court, Ocharo Kebira J, declined to decide the enforceability of the clause or the application at all. It held the order sought would determine the dispute with finality, yet the Applicant had invoked the wrong procedure by approaching the court by application instead of a statement of claim; the sharply contested issues required viva voce evidence subject to cross-examination, as affidavit evidence cannot determine complex issues. The court expressly refrained from any decision on the merits and awarded costs of the application to the Respondent, leaving the Applicant free to institute the claim through a correct procedure.

Key legal issues

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01

Whether the court may determine the enforceability of a non-compete (restraint of trade) clause on a notice of motion supported by affidavit evidence

Holding

No. The application was misconceived procedurally; the correct process was a statement of claim, and the Court declined to determine the dispute or express any view on the merits of the non-compete clause.

Reasoning

The court observed that the order sought would determine the dispute with finality, yet the Applicant had approached the court by application rather than a statement of claim. The parties held diametrically opposed positions on the clause, and the issues required viva voce evidence subjected to cross-examination. Affidavit evidence cannot resolve complex issues. The court therefore refrained from rendering any decision on the merits, leaving the Applicant free to institute the claim through a correct procedure.

p. 6
02

Enforceability of the three-month non-compete clause (clause 15.1) in the employment contract

Holding

Not determined. The Applicant argued the clause complied with section 2 of the Contract in Restraint of Trade Act (bounded in time, geography and scope of services); the Respondent argued it was unreasonable, ambiguous, wide in scope and void, and would deny his livelihood. The court declined to rule on these contentions.

Reasoning

Both sides filed detailed competing positions: the Applicant relied on the Contract in Restraint of Trade Act and authorities on sanctity of contract and estoppel; the Respondent relied on authorities holding overbroad restraint clauses void and stressed his constitutional right to earn a livelihood and the absence of demonstrated loss. The court held such contested issues could only be justly determined after trial on oral evidence and expressly restrained itself from deciding the merits.

p. 6

Legal principles established

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  • A dispute involving contested issues such as the enforceability of a non-compete clause in an employment contract cannot be justly adjudicated on affidavit evidence by way of a notice of motion; it must be determined through a properly instituted suit and viva voce evidence tested by cross-examination.
  • Affidavit evidence cannot be used to determine complex issues.

Court orders

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  1. 1.The Court declined to make a determination of the dispute on the Notice of Motion application dated 28th October 2019, without expressing any view on the merits
  2. 2.Costs of the application awarded to the Respondent

Authorities

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Legislation

  • Employment and Labour Relations Court Actsections 12(1), (3) and (4)
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 17(1), (3) and (9)
  • Contract in Restraint of Trade Act Cap 24section 2

Cases cited (8)

  • Lisebo Lerato Pearl Remembulana & Pilansberg Platinum Mines
    Labour Court of South Africa Case No. J 808/13
  • Paul Njaga Kihara =vs= Chase Bank (Kenya) Limited in Receivership & another
    [2018] eKLR
  • Doge =vs= Kenya Canners Limited
    [1989] KLR 127
  • Rajasthan State Industrial Development and Investment Corporation and another =vs= Diamond and Gem Development Limited and another
    AIR 2013 SC 1241
  • Craft Silicon Limited =vs= Nilauri Sekhar Roy
    [2018] eKLR
  • HF Fire Africa Limited =vs= A.M.R. Gharieb
    [2004] eKLR
  • Bridge International Academies Limited =vs= Robert Kimani Kiarie
    [2015]
  • Ahad =vs= CJE C.A.
    Civil Appeal No. 196 of 2017
Jurisdiction invoked
Sections 12(1), (3) and (4) of the Employment and Labour Relations Court Act and Rules 17(1), (3) and (9) of the Employment and Labour Relations Court (Procedure) Rules, 2016

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Nrg Media Limited v Charles Karumi Maina [2021] KEELRC 261 (KLR)", Case Analysis (2021). Not stated in the judgment (Notice of Motion application dated 28th October 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/261/eng@2021-11-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.