Kenneth Kihara Gachengo v Commercial International Bank (CIB) Kenya Limited
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the petitioner was entitled to read-only access to his former work email and the Mimecast portal
Refused; the order was too wide, amounted to fishing for evidence, and the court lacked jurisdiction over a former employee now a third party.
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.
Whether the respondent must provide the audit or investigation report leading to the show cause letter
Allowed; the report is a relevant document and part of the disciplinary proceedings which the employer ought to have availed.
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.
Whether certified copies of all performance reviews, appraisals and evaluations should be provided
Allowed only for the year 2025; reports outside the material time were irrelevant since termination was for misconduct, not performance.
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.
Legal principles established
#- 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
#- 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.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.The Respondent to comply within 30 days.
- 4.Mention on 26th October 2026 for further directions in the hearing of the petition.
- 5.Costs in the cause.
- 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
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.