Excel Global Limited v Kithinji & another (Cause E137 of 2025) [2025] KEELRC 1687 (KLR)
The bottom line
#A Kenyan employment court temporarily blocked a former lecturer from joining a competitor because his non-compete clause remained valid after he resigned.
What this practically means
#Executive summary
#Key legal issues
#Validity and enforceability of the non-compete clause
The clause is prima facie valid and enforceable because the contract was not unlawfully terminated, and there was no material showing inequality of bargaining power or unreasonableness
The court reviewed the settled law on restraints of trade, noting courts enforce them only where bargaining power was equal and public interest is not harmed. The contract ended by the employee's resignation, not unlawful termination, so the statutory ground for invalidity under the Contracts in Restraint of Trade Act did not arise. With no contest by the 1st Respondent, the court found no evidence of disadvantage or unreasonableness and upheld the clause on an interim basis.
Whether the Claimant and 2nd Respondent are competitors in the same industry
On the interim material, the court accepted the investigation report showing the two entities are in the same industry and located within close proximity; the 2nd Respondent adduced no cogent rebuttal
The investigation report annexed to the Claimant's affidavit showed both entities operate in the education industry and that the 1st Respondent had been hired by the 2nd Respondent. The 2nd Respondent merely asserted the Claimant had not demonstrated commonality without providing contrary evidence, and did not dispute the proximity of the two establishments, so the court accepted the Claimant's preliminary evidence.
Proper procedure for raising misjoinder of a party
A misjoinder objection must be pursued through a formal application (Notice of Motion) under Order 1 rule 10(2) and Order 51 rule 1 of the Civil Procedure Rules, not a bare Notice of Preliminary Objection
The 2nd Respondent framed its objection as misjoinder rather than a jurisdictional challenge. Order 1 rule 10(2) permits striking out or adding parties, but where a party originates the request, a formal application is required. Since the ELRC (Procedure) Rules, 2024 are silent on joinder, the court, following TNT Express, resorted to the Civil Procedure Rules and declined to rule on the objection without such an application.
Legal principles established
#- Courts are reluctant to enforce non-compete agreements unless the parties enjoyed equality of bargaining power and the contracts are not inimical to public interest
- A contract does not become void merely because it contains a non-compete clause; the High Court may declare such a clause void only if it is unreasonable or contrary to public interest
- A non-compete clause is void against an employee whose contract of service was unlawfully terminated, but not where employment ended through resignation
- Where a party seeks joinder/misjoinder relief, a formal application by Notice of Motion is required rather than a bare Notice of Preliminary Objection
- The ELRC may resort to the Civil Procedure Act and Rules to fill gaps in the ELRC (Procedure) Rules, per the Court of Appeal in TNT Express
Court orders
#- 1.Temporary injunction restraining the 1st Respondent from taking up employment with the 2nd Respondent or any other entity offering the same products and services as those offered by the Claimant during the non-compete period
- 2.Temporary injunction restraining the 1st Respondent, whether by himself, through the 2nd Respondent or his agents and servants, from enticing and or canvassing for the Claimant's clients within the non-compete period
- 3.Temporary injunction restraining the 1st Respondent, whether by himself, through the 2nd Respondent or his agents and servants, from utilizing or disclosing the Claimant's confidential information and trade secrets to competing entities within the non-compete period
- 4.The injunctions remain valid and in force only until 2nd July 2025, whereafter they lapse automatically
- 5.Costs of the application to abide the outcome of the suit
- Jurisdiction invoked
- Article 162(2) jurisdiction of the ELRC (implied); interlocutory application in an employment cause under the Employment and Labour Relations Court (Procedure) Rules, 2024, with recourse to the Civil Procedure Rules to fill a lacuna
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Excel Global Limited v Kithinji & another (Cause E137 of 2025) [2025] KEELRC 1687 (KLR)", Case Analysis (2025). Cause No E137 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1687/eng@2025-06-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.