Okeyo v Board of Directors HHI Management Service Limited & another (Cause E970 of 2023) [2024] KEELRC 1992 (KLR)
The bottom line
#Kenya's Employment Court confirmed employees can use confidential work documents in court unless employers prove real prejudice from their disclosure.
What this practically means
#Executive summary
#Key legal issues
#Whether the documents were confidential and their use a breach of the confidentiality clause
Although some information was confidential, disclosure to counsel and the court in pursuit of the claim did not breach Clause 7.1 of the Letter of Engagement
Clause 7.1 allowed disclosure as required by law and did not specify to whom confidential information could not be disclosed. The Claimant used the documents to safeguard his rights in a civil suit, a fundamental right. The court applied the test in Nduati v Ernst & Young and found some information confidential but its use before the court lawful.
Whether the 2nd Respondent discharged the burden of justifying expunction
The 2nd Respondent did not demonstrate prejudice, disruption of business, or that a clear uniformly applied confidentiality policy existed
The Supporting Affidavit was silent on the prejudice the 2nd Respondent would suffer if expunction was denied, tendered no evidence of business disruption, and it was unclear whether a uniformly applied confidentiality policy existed given the Claimant was Group Chief Executive Officer. Applying the Leland Salano guidelines, the application failed.
Legal principles established
#- Where access to information to prosecute a suit is a constitutional imperative, the party seeking expunction must cogently and justifiably demonstrate why the information ought to be expunged
- Disclosure of confidential information to an advocate and the court for purposes of safeguarding one's rights does not breach a confidentiality clause that does not specify prohibited recipients
Court orders
#- 1.The 2nd Respondent's Notice of Motion dated 29th November, 2023 is dismissed
- 2.No orders as to costs
- Jurisdiction invoked
- Section 12(3)(iii), (iv) and (viii) of the Employment and Labour Relations Court Act, 2011 and Rule 17(1) of the Employment and Labour Relations Court (Procedure) Rules, 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okeyo v Board of Directors HHI Management Service Limited & another (Cause E970 of 2023) [2024] KEELRC 1992 (KLR)", Case Analysis (2024). Cause No E970 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1992/eng@2024-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.