Ipomai v Sanlam Kenya Limited (Cause 263 of 2018) [2024] KEELRC 1521 (KLR)
The bottom line
#A Kenyan employment court ruled that confidentiality clauses cannot hide relevant documents from judges, but lawyer-client communications stay protected.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether documents allegedly obtained or retained unlawfully and in breach of confidentiality clauses by the Claimant should be expunged from the record
- 2.Whether the documents breach the Respondent's rights to privacy and fair administration of justice
- 3.Whether 'without prejudice' correspondence is admissible
- 4.Whether the draft legal opinion of Daly & Inamdar Advocates is protected by client-advocate privilege and should be expunged
Key legal issues
#Admissibility of documents allegedly obtained or retained in breach of confidentiality obligations
The documents were not expunged; they are relevant, are shared with the Court and not third parties, and confidentiality clauses cannot exclude the Court
The Claimant interacted with the documents as Group Chief Finance Officer and Acting Principal Officer of the Respondent's subsidiary. The documents are relevant to her challenge to dismissal and are mentioned in the pleadings. Confidentiality clauses protect trade secrets from competitors and cannot be directed at the Court, which has a need to know. Reports from public agencies like the IRA are likely to come into the public domain.
'Without prejudice' settlement correspondence
Admissible to show that a settlement/negotiation exercise took place, but not as evidence of agreed terms
The letters were authored during an attempt at amicable mutual separation, which the Respondent itself pleads. The Claimant relies on them only to show negotiation took place, not that terms were agreed. The Court will not impose any proposed settlement terms on the parties.
Client-advocate privilege over the draft legal opinion of Daly & Inamdar Advocates
The draft legal opinion is privileged and was expunged
The Court agreed with the Respondent that the draft opinion constitutes privileged communication between advocate and client. Privilege is sacrosanct and fundamental to the Rule of Law. The Claimant can prosecute her claim adequately without it, and the Court can always invite legal opinion if needed.
Parties' duty to assist the Court under Section 3 of the ELRC Act
The duty includes full disclosure of relevant documents
Section 3 of the Employment & Labour Relations Court Act obliges parties to assist the Court and participate fully to enable just determination. Availing relevant records was compliance with that duty, not an act in furtherance of personal interest against the former employer.
Legal principles established
#- Confidentiality clauses in employment contracts are directed at competitors and third parties, and cannot bar a court from accessing relevant evidence
- Once documents are placed before a court they belong to the court, and a party fearing breach of confidentiality may seek protective orders short of expungement
- Client-advocate privilege is sacrosanct and courts will protect it at all times
Court orders
#- 1.The Court shall allow the Claimant to exhibit all documents as filed, except the draft legal opinion of Daly & Inamdar Advocates, dated July 21, 2017
- 2.No order on the costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court Act, Section 3
Relief refused
#Expungement of all documents except the draft legal opinion
The documents are relevant to the dispute, are being shared with the Court rather than third parties, and confidentiality clauses cannot bar the Court from accessing relevant evidence
Costs
No order on the costs
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.
Confidentiality clauses are normally directed at business competitors. They are aimed at protecting the Employer’s trade secrets, business operations and strategies. They cannot be directed at the Court, barring it from accessing evidence which is relevant, in determining disputes.
It is not in the interest of fair administration of justice, to expunge documents which are relevant, in resolution of the issues in dispute.
The Court shall allow the Claimant to exhibit all documents as filed, except the draft legal opinion of Daly & Inamdar Advocates, dated July 21, 2017.
This privilege is sacrosanct for obvious reasons, and Courts will protect it, at all times. It is fundamental to the Rule of Law.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ipomai v Sanlam Kenya Limited (Cause 263 of 2018) [2024] KEELRC 1521 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1521/eng@2024-06-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.