Direct Pay Limited v Marion Khasoa Stevens [2021] KEELRC 1486 (KLR)
The bottom line
#A Kenyan court refused to force a former employee to leave a competitor, confirming non-compete clauses are rarely enforced against workers' right to earn a living.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the court should issue a mandatory injunction compelling the respondent to cease employment with a third party (Pesapal Limited) pending hearing of the arbitral proceedings to determine the dispute between the parties
Key legal issues
#Whether a mandatory injunction should issue compelling the respondent to cease employment with a competitor pending arbitration
No - the application failed for want of a prima facie case, delay of over six months, and because enforcing the non-compete restraint would offend fair labour practices and public policy
The court noted the addendum containing the non-compete clause was dated 13th March 2018 while employment ran only from 15th June 2020 to 13th August 2020, so the document's temporal scope did not support a prima facie case. The application was also filed over six months after employment ceased. Enforcing the restraint would deprive the respondent of her right to work and earn a living without a corresponding benefit, contrary to Article 41 fair labour practices, forced-labour prohibitions, and public policy. The applicant also sought no relief on disclosure of confidential information.
Whether the restrictive covenant could justify keeping the respondent out of employment without a corresponding benefit
No - subjecting an employee to loss of employment on the basis of a restrictive clause is unreasonable and contrary to public policy in Kenya's context of unemployment
Relying on Credit Reference Bureau Holdings Limited v Steven Kunyiha, the court adopted the reasoning that enforcing a restraint clause would remove an employee from employment without any guarantee of re-employment after the restraint period, which is unreasonable and against public policy. The court also invoked the constitutional prohibition of forced labour, the Employment Act's outlawing of forced employment, the right to fair labour practices under Article 41, and the right to work under Article 15 of the African Charter read with Article 2(6) of the Constitution.
Legal principles established
#- A mandatory injunction at the interlocutory stage should not be granted in the absence of special circumstances, in a clear case, and where the matter ought to be decided at once
- No employer should be allowed to restrict an employee from seeking alternative employment unless in very exceptional circumstances demonstrated to the court
- Restraining an employee from working without a corresponding benefit would breach the right to fair labour practices under Article 41 of the Constitution and be contrary to public policy
Court orders
#- 1.The application dated 22nd February, 2021 is declined and dismissed
- 2.Costs of the application awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 12(1)(3)(i)(viii) of the Employment and Labour Relations Court Act; Rule 17 of the Employment and Labour Relations Court (Procedure) Rules; section 7(1) of the Arbitration Act and Rule 43 of the Arbitration Rules, 2020
Relief refused
#Mandatory injunction compelling the respondent to cease employment with Pesapal Limited pending hearing and determination of the application and of the arbitral proceedings
No prima facie case established; the non-compete addendum predated the employment; the application was filed over six months after employment ended; enforcing the restraint would offend fair labour practices and public policy
Costs
Application dismissed with costs to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, for the reasons above, application dated 22 nd February, 2021 is declined and hereby dismissed with costs to the respondent. It is so ordered.
As a principles, a mandatory injunction can be granted on an interlocutory application as well as at the hearing but should not be granted in the absence of special circumstances, in a clear case, and where the court finds this ought to be decided at once.
no employer should be allowed to restrict an employee from seeking alternative employment unless in very exceptional circumstance and which must be demonstrated to the court.
To restrict the right to work would go contrary to fair labour practices, a right secured under Article 41 of the Constitution, 2010. Such an action would be contrary to public policy
Issues in the judgment
#The judgment refers to Article 18 of the African Charter on Human and People's Rights for the right to work, but the right to work is under Article 15; Article 18 concerns the family
The affidavit is attributed to 'Agnes Mwatha' but thereafter referred to as 'Ms Mwathi', an internal inconsistency in the name
The judgment contains typographical errors, e.g. 'non-complete covenant' for 'non-compete covenant' and 'Rue 17' for 'Rule 17'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Direct Pay Limited v Marion Khasoa Stevens [2021] KEELRC 1486 (KLR)", Case Analysis (2021). Notice of Motion dated 22nd February, 2021 (Cause number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1486/eng@2021-03-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.