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

RULING 1. The petitioner was a former employee of the respondent and filed a petition dated 4th March 2026, alleging a violation of his constitutional rights arising from the termination of his contract and seeking the following relief- A. A declaration that the disciplinary process by the respondent was unlawful and unconstitutional and violated the petitioner's right to fair labour practices. B. A declaration that the refusal by the respondent to provide the petitioner with information relating to the purported investigations conducted between 15% October 2025 and 21 October 2025 violated his right to access to information. C. A declaration that the refusal by the respondent to allow the petitioner to access to his work laptop during the disciplinary hearing on 30 October 2025 along with the disciplinary appeal hearing on 17th December 2025 was unfair, unfounded, unlawful and unconstitutional, and violated his right to fair administrative action. D. A declaration that the petitioner's summary dismissal was unfair, unlawful and unconstitutional to the extent that the impugned disciplinary process contravened the provisions on Articles 28, 35, 41 and 47 of the Constitution of Kenya, 2010. E. An order of certiorari quashing the show cause letter dated 21 October 2025, and the termination letter dated 12 November 2025. RULING IN NAIROBI ELRC PETITION NO. E074 OF 2026 P a g e 2 | 15

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F. A conservatory order do issue restraining the respondent, its agents, servants or any other person acting for and or on their behalf from communicating to any third party about the allegations in respect of the allegations leading to the wrongful summary dismissal of the petitioner. G. An order for compensation of twelve (12) month's salary amounting to Kshs 5,961,444.00 for violation of the petitioner's constitutional rights under Articles 28, 35, 41 and 47 of the Constitution of Kenya 2010 as outlined hereinabove. H. An order for compensation of twelve (12) months' salary pursuant to section 49(c) of the Employment Act No. 11 of 2007 to wit Kshs 5.961.444.00. I. An order for general and aggravated damages for breach of constitutional rights including the right to fair administrative action, right to human dignity and self-worth. J. An order for interest at 12% p.a. on prayers (G). (H) and (1) above herein from the date of filing the amended petition until payment in full. K. That the costs of this petition be borne by the respondent. 2. The petitioner, in support of his petition, filed a supporting affidavit sworn on 3rd March 2026 and his contract and the disciplinary proceedings leading to the termination. RULING IN NAIROBI ELRC PETITION NO. E074 OF 2026 P a g e 3 | 15

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The application 3. The petitioner approached the court, seeking a certificate of urgency, by way of an application by notice of motion dated 4th March 2026, filed with the above petition, and sought the following interim orders – 1) Pending the hearing and determination of the substantive Petition, the Respondent be ordered to grant the Petitioner read-only access to- a. His official work email account (Microsoft 365 mailbox); and b. The Mimecast quarantine portal, solely for purposes of accessing evidence relevant to this dispute. 2) Pending the hearing and determination of the substantive petition, the Respondent be ordered to provide certified copies of the audit or investigation report that led to the show cause letter dated 21" October 2025 issued to the petitioner. 3) Pending the hearing and determination of the substantive petition the Respondent be ordered to provide the petitioner with certified copies of all performance reviews, appraisals, and evaluations of the Petitioner from commencement of employment to the year 2025. 4) Any further or other relief that the Court deems just and equitable in the circumstances. RULING IN NAIROBI ELRC PETITION NO. E074 OF 2026 P a g e 4 | 15

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Grounds of the application 4. The suit herein stems from the unlawful dismissal of the Petitioner from employment by the Respondent. 5. The Applicant had been employed as an assistant Manager-Information Technology since December 2015. 6. During his employment, the respondent begun using mimecast platform, which is an enterprise email security and archiving platform integrated with Microsoft 365, which filters, quarantines, archives, and logs email communications for purposes of security, compliance, and monitoring. 7. The Applicant was one of the appointed administrators on the platform with authority to review emails that had been Quarantined by the platform; authority that had been given since the platform vendor supplied the platform to the Respondent in 2018. 8. The Applicant's employment was interrupted on the 14th day of October 2025, when the Respondent placed him on suspension to give way to investigations where the Respondent expected the Petitioner to be available to help with the investigations. 9. The Respondent served the Applicant with a show cause letter 6 days later, alleging unauthorized access to confidential emails, constituting a serious breach of employment contract, Section 5 of the Computer Misuse and Cybercrimes Act, 2018, the bank's Code of Conduct, and the Whistleblower Policy. RULING IN NAIROBI ELRC PETITION NO. E074 OF 2026 P a g e 5 | 15

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10. The letter was not accompanied by any audit or investigation report that had informed the letter. 11. The Respondent conducted two hearings, the initial disciplinary hearing on 30th October 2025 and the appeal hearing later on 17th December 2025, where the Applicant requested read only access to his official mailbox which he had been using while working for the respondent as well as access to the mimecast portal, requests that were ignored. 12. That the respondent's denial of this information is an infringement of the Applicant's right to access information. 13. THAT the prayers sought do not cause any prejudice to the respondent. 14. The respondent entered appearance through the law firm of Coulson Harney LLP Advocates and filed a replying affidavit sworn by Geoffrey Kaebu on the 16 th June 2026 in response to the petition and the application. The respondent opposed the application in totality. 15. The petitioner filed a further affidavit dated 9th July 2026 in reply to the replying affidavit. Decision 16. The court directed the application dated 4th March 2026 be canvassed by way of written submissions. Both parties filed. 17. The issue for determination was – RULING IN NAIROBI ELRC PETITION NO. E074 OF 2026 P a g e 6 | 15

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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. The law 18. Article 35 of the Constitution states‘35. Access to information (1)Every citizen has the right of access to— (a)information held by the State; and (b)information held by another person and required for the exercise or protection of any right or fundamental freedom. (2)Every person has the right to the correction or deletion of untrue or misleading information that affects the person. (3)The State shall publish and publicise any important information affecting the nation.’ 19. Article 41 of the Constitution states – ‘41. Labour relations (1)Every person has the right to fair labour practices. (2)Every worker has the right— (a)to fair remuneration; RULING IN NAIROBI ELRC PETITION NO. E074 OF 2026 P a g e 7 | 15

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(b)to reasonable working conditions;….’ 20. Article 47 of the Constitution states‘47. Fair administrative action (1)Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. (2)If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action. (3)Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall— (a)provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; and (b)promote efficient administration.’ 21. Article 50 of the Constitution is on fair hearing, which is provided as a non-derogable fundamental human right. 22. Section 20 of the Employment and Labour Relations Court Act- RULING IN NAIROBI ELRC PETITION NO. E074 OF 2026 P a g e 8 | 15

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‘20. General powers of the Court (1)In any proceedings to which this Act applies, the Court shall act without undue regard to technicalities and shall not be strictly bound by rules of evidence except in criminal matters: Provided that the Court may inform itself on any matter as it considers just and may take into account opinion evidence and such facts as it considers relevant and material to the proceedings. (2)The Court shall have power to summon witnesses, to administer oaths and affirmations and to require any person who appears to it to have special knowledge of any relevant matter, or of any of the matters to which this Act applies or any written law to which it relates to furnish, in writing or otherwise, and to confirm on oath, such expert opinion as may be relevant to any of the issues in the proceedings. (3)The experts referred to in subsection (2) shall be paid in accordance with the Rules.(4)For the purpose of dealing with any matter before it, the Court may by order in writing signed by or on behalf of the Court require any person to—(a)furnish in writing or otherwise, such particulars in relation to such matters as it may require; (b)attend before it; (c)give evidence on oath or otherwise; and(d)produce any relevant documents.’(emphasis given) Analysis and application of the law 23. Article 35 provides for access to information. The Respondent is a private entity; thus, the applicable clause is‘35(1)Every citizen has the right of access toRULING IN NAIROBI ELRC PETITION NO. E074 OF 2026 P a g e 9 | 15

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(b)information held by another person and required for the exercise or protection of any right or fundamental freedom.’ 24. The court considered the orders sought as follows- 25. On the relief sought that - ‘The Respondent be ordered to grant the Petitioner read-only access toa. His official work email account (Microsoft 365 mailbox); and b. The Mimecast quarantine portal, solely for purposes of accessing evidence relevant to this dispute.’ 26. The court finds the order of read access of the applicant’s official work email account (Microsoft 365 mailbox) and the Mimecast quarantine portal, as sought, too wide. 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. The right time to seek such an order was before the response to the notice to show cause at the shop floor. The applicant is no longer having any contractual relations with the respondent. The court finds it lacks jurisdiction to order a third party to access the employer's internal systems. The applicant is now a third party as he holds no employment contract with the respondent. I find the limitation is on the access of the applicant’s former official work email account (Microsoft 365 mailbox) and the Mimecast quarantine portal of the respondent is within the provisions of Article 24 of the Constitution, to wit‘24. Limitation of rights and fundamental freedoms RULING IN NAIROBI ELRC PETITION NO. E074 OF 2026 P a g e 10 | 15

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(1)A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including— (a)the nature of the right or fundamental freedom; (b)the importance of the purpose of the limitation; (c)the nature and extent of the limitation; (d)the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and(e)the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.’ 27. I disallow the order sought of- ‘The Respondent be ordered to grant the Petitioner read-only access toa. His official work email account (Microsoft 365 mailbox); and b. The Mimecast quarantine portal, solely for purposes of accessing evidence relevant to this dispute.’ for the reason that I lack jurisdiction to do so and further it would be prejudicial to the Respondent’s right to confidentiality of its business information as the Applicant has no contract with it. RULING IN NAIROBI ELRC PETITION NO. E074 OF 2026 P a g e 11 | 15

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28. On the order sought that - Pending the hearing and determination of the substantive petition, the Respondent be 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. The request was opposed by the Respondent. 29. The Respondent placed reliance on the case of Sereta v Co-operative Bank of Kenya Ltd [2025] KEELRC 3405 (KLR) where this Court held that where charges have been well captured and detailed enough, the employer’s obligation to provide the investigation report is discharged. Further in Ogolla v National Bank Ltd [2022] KEELRC 1502 (KLR) where this Court declined to compel the production of the investigation report and upheld the termination, stating that“the claimant did not demand for the report or any other information either in the response to the show-cause or during the oral hearing. The challenge based on the failure to supply the report was an afterthought.” 30. The court was not persuaded to limit the petitioner's right under Article 35 of the Constitution without a valid basis. The applicant was suspended by the employer pending investigations. The court was persuaded that the investigation report, being part of the disciplinary proceedings, is a document of which the employer ought to have availed the employee. 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. The Respondent has not disclosed to the court a valid reason why it should not avail the report to the Claimant, having relied on the same for the termination. RULING IN NAIROBI ELRC PETITION NO. E074 OF 2026 P a g e 12 | 15

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31. I find that no prejudice would be suffered by the employer in the production of the investigation report. I was persuaded by the decision relied on by the petitioner in COO v GAIN [2025] KEELRC 2046 (KLR), where the Court held that an employer's refusal to provide information relating to investigations conducted against an employee violated Article 35 of the Constitution and contributed to a finding that the disciplinary process contravened Articles 41 and 47. The court held‘The petitioner has shown that he is entitled to a declaration that the refusal by the respondent to provide the petitioner with information relating to the purported investigations conducted between 23.10.2024 and 27.11.2024 violated his right to access to information.’ 32. It is my finding that the investigation report is a relevant document in these proceedings. I allow the prayer. 33. On order sought - Pending the hearing and determination of the substantive petition the Respondent be ordered to provide the petitioner with certified copies of all performance reviews, appraisals, and evaluations of the Petitioner from commencement of employment to the year 2025. The court did not find relevance of the performance reports for periods before the material time of termination. The reason for termination was misconduct, not performance. The notice to show cause is titled –‘alleged unauthorised access/reading of confidential emails’. The appraisal reports form part of employee records under the Employment Act. I see no prejudice that can be suffered by the employer in the production of performance appraisal documents of the appellant. The keyword in enforcing Article 35 is relevancy. I find no relevance to the reports outside the material time, with termination in 2025. I allow this prayer, RULING IN NAIROBI ELRC PETITION NO. E074 OF 2026 P a g e 13 | 15

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but only to the extent of the performance reviews, appraisals, and evaluations of the Petitioner for the year 2025. Disposition 34. The court allowed the application dated 4th March 2026 by the petitioner as followsa. 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. b. 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. c. The Respondent to comply within 30 days. d. Mention on 26th October 2026 for further directions in the hearing of the petition. e. Costs in the cause. 35. It is so Ordered. DATED, SIGNED, AND DELIVERED VIRTUALLY AT NAIROBI THIS 25 TH DAY OF SEPTEMBER, 2026. JEMIMAH KELI, JUDGE. IN THE PRESENCE OF: Court Assistant: Otieno Applicant: Ms. Wachira RULING IN NAIROBI ELRC PETITION NO. E074 OF 2026 P a g e 14 | 15

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Respondent- Ms Gatumba h/b Kuyo RULING IN NAIROBI ELRC PETITION NO. E074 OF 2026 P a g e 15 | 15

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