Nrg Media Limited v Charles Karumi Maina [2021] KEELRC 261 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the court may determine the enforceability of a non-compete (restraint of trade) clause on a notice of motion supported by affidavit evidence
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.
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.
Enforceability of the three-month non-compete clause (clause 15.1) in the employment contract
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.
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.
Legal principles established
#- 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
#- 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.Costs of the application awarded to the Respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.