Ipomai v Sanlam Kenya Limited (Cause 263 of 2018) [2024] KEELRC 1521 (KLR)
The bottom line
#A Kenyan employment court ruled that confidentiality clauses cannot hide relevant documents from judges, but lawyer-client communications stay protected.
What this practically means
#Executive summary
#Key legal issues
#Admissibility of documents allegedly obtained or retained in breach of confidentiality obligations
The documents were not expunged; they are relevant, are shared with the Court and not third parties, and confidentiality clauses cannot exclude the Court
The Claimant interacted with the documents as Group Chief Finance Officer and Acting Principal Officer of the Respondent's subsidiary. The documents are relevant to her challenge to dismissal and are mentioned in the pleadings. Confidentiality clauses protect trade secrets from competitors and cannot be directed at the Court, which has a need to know. Reports from public agencies like the IRA are likely to come into the public domain.
'Without prejudice' settlement correspondence
Admissible to show that a settlement/negotiation exercise took place, but not as evidence of agreed terms
The letters were authored during an attempt at amicable mutual separation, which the Respondent itself pleads. The Claimant relies on them only to show negotiation took place, not that terms were agreed. The Court will not impose any proposed settlement terms on the parties.
Client-advocate privilege over the draft legal opinion of Daly & Inamdar Advocates
The draft legal opinion is privileged and was expunged
The Court agreed with the Respondent that the draft opinion constitutes privileged communication between advocate and client. Privilege is sacrosanct and fundamental to the Rule of Law. The Claimant can prosecute her claim adequately without it, and the Court can always invite legal opinion if needed.
Parties' duty to assist the Court under Section 3 of the ELRC Act
The duty includes full disclosure of relevant documents
Section 3 of the Employment & Labour Relations Court Act obliges parties to assist the Court and participate fully to enable just determination. Availing relevant records was compliance with that duty, not an act in furtherance of personal interest against the former employer.
Legal principles established
#- Confidentiality clauses in employment contracts are directed at competitors and third parties, and cannot bar a court from accessing relevant evidence
- Once documents are placed before a court they belong to the court, and a party fearing breach of confidentiality may seek protective orders short of expungement
- Client-advocate privilege is sacrosanct and courts will protect it at all times
Court orders
#- 1.The Court shall allow the Claimant to exhibit all documents as filed, except the draft legal opinion of Daly & Inamdar Advocates, dated July 21, 2017
- 2.No order on the costs
- Jurisdiction invoked
- Employment and Labour Relations Court Act, Section 3
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ipomai v Sanlam Kenya Limited (Cause 263 of 2018) [2024] KEELRC 1521 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1521/eng@2024-06-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.