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ELRCPartially AllowedELRC Petition No. E074 of 2026

Kenneth Kihara Gachengo v Commercial International Bank (CIB) Kenya Limited

Employment and Labour Relations Court of Kenya
25 September 2026
3,040 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court ordered CIB Kenya to hand over the investigation report behind an employee's dismissal, but refused him access to his old work email.

What this practically means

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Executive summary

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This ruling by the Employment and Labour Relations Court at Nairobi (Jemimah Keli, J) determines an interlocutory notice of motion dated 4th March 2026 filed by a former Assistant Manager-Information Technology alongside a petition challenging his summary dismissal. The petitioner sought interim orders compelling the respondent bank to grant him read-only access to his official Microsoft 365 mailbox and the Mimecast quarantine portal, and to furnish certified copies of the audit or investigation report leading to his show cause letter, plus all performance reviews and appraisals. The respondent opposed the application in totality through a replying affidavit. The court framed a single issue on whether the respondent's refusal to provide information exclusively in its possession violated Article 35 and impaired the petitioner's rights under Articles 41, 47, 48 and 50. The court refused the access orders, holding them too wide, an impermissible fishing expedition, and beyond its jurisdiction since the petitioner, no longer employed, was a third party, with the limitation justified under Article 24. However, it allowed production of the investigation report, holding it core to a fair hearing under section 41 of the Employment Act, and allowed performance appraisals but only for 2025, applying a relevancy test to Article 35. The application was allowed in part, compliance ordered within 30 days, mention set for 26th October 2026, with costs in the cause.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Respondent's refusal to provide information that is exclusively within its possession and is necessary for the Petitioner to exercise and protect his constitutional rights violates Article 35 of the Constitution and consequently impairs the Petitioner's rights under Articles 41, 47, 48 and 50 of the Constitution.

Key legal issues

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01

Whether the petitioner was entitled to read-only access to his former work email and the Mimecast portal

Holding

Refused; the order was too wide, amounted to fishing for evidence, and the court lacked jurisdiction over a former employee now a third party.

Reasoning

The court held the applicant was seeking to fill evidentiary gaps in an adversarial system, that the proper time to seek such access was before responding to the show cause letter, and that with no subsisting employment contract the petitioner was a third party whose access would prejudice the respondent's business confidentiality, a limitation justifiable under Article 24.

p. 10
02

Whether the respondent must provide the audit or investigation report leading to the show cause letter

Holding

Allowed; the report is a relevant document and part of the disciplinary proceedings which the employer ought to have availed.

Reasoning

The court declined to limit the Article 35 right without valid basis, holding the investigation report informs on the validity of the reason for termination and is core to a fair hearing under section 41 of the Employment Act. The respondent disclosed no valid reason for withholding a report it relied on, and no prejudice would be suffered in producing it.

p. 12
03

Whether certified copies of all performance reviews, appraisals and evaluations should be provided

Holding

Allowed only for the year 2025; reports outside the material time were irrelevant since termination was for misconduct, not performance.

Reasoning

The court applied a relevancy test to Article 35. The show cause letter concerned alleged unauthorised access to confidential emails, so pre-2025 appraisals were irrelevant. However, as appraisal reports form part of employee records under the Employment Act, no prejudice would arise from producing those for 2025.

p. 13

Legal principles established

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  • An investigation report relied on by an employer for termination is at the core of a fair hearing under section 41 of the Employment Act and ought to be availed to the employee.
  • The keyword in enforcing Article 35 access to information is relevancy.
  • A court cannot order a former employee, now a third party, access to an employer's internal systems; such limitation is justifiable under Article 24.

Court orders

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  1. 1.Pending the hearing and determination of the substantive petition, the Respondent is ordered to provide certified copies of the audit or investigation report that led to the show cause letter dated 21st October 2025 issued to the Petitioner.
  2. 2.Pending the hearing and determination of the substantive petition, the Respondent is ordered to provide the Petitioner with certified copies of all performance reviews, appraisals, and evaluations of the Petitioner for the year 2025.
  3. 3.The Respondent to comply within 30 days.
  4. 4.Mention on 26th October 2026 for further directions in the hearing of the petition.
  5. 5.Costs in the cause.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Articles 28, 35, 41, 47, 48, 50 and 162(2) of the Constitution of Kenya, 2010; Employment Act 2007; Fair Administrative Action Act No. 4 of 2015

Relief refused

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Read-only access to the Petitioner's official work email account (Microsoft 365 mailbox) and the Mimecast quarantine portal

Order too wide; court lacks jurisdiction to order a former employee (now a third party) access to the employer's internal systems; limitation justified under Article 24; would prejudice the Respondent's confidentiality.

p. 11

Costs

Costs in the cause.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The court finds that an investigation report is at the core of a fair hearing under section 41 of the Employment Act, as it informs on the validity of the reason for termination.
p. 12Investigation report and fair hearing
The keyword in enforcing Article 35 is relevancy.
p. 13Access to information - relevancy test
The applicant is seeking the court's assistance in fishing for evidence to fill gaps in the instant case, which cannot be allowed in an adversarial system.
p. 10Fishing expedition disallowed
That pending the hearing and determination of the substantive petition, the Respondent is ordered to provide certified copies of the audit or investigation report that led to the show cause letter dated 21st October 2025 issued to the Petitioner.
p. 14Final orders - disposition
That pending the hearing and determination of the substantive petition, the Respondent is ordered to provide the Petitioner with certified copies of all performance reviews, appraisals, and evaluations of the Petitioner for the year 2025.
p. 14Final orders - performance reviews

Issues in the judgment

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minor

Judgment refers to 'the appellant' though this is a first-instance petition.

material

Court disclaims jurisdiction over third-party access yet grants document production orders on the same application.

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, "Kenneth Kihara Gachengo v Commercial International Bank (CIB) Kenya Limited", Case Analysis (2026). ELRC Petition No. E074 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2728/eng@2026-09-25

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