Non-Compete Confidentiality Disputes Kenyan Employment Litigation questions look different once a departing employee has actually joined a competitor and an employer is standing at the Employment and Labour Relations Court asking for an injunction rather than debating a clause in the abstract. We have covered whether these clauses are enforceable in principle elsewhere on this site; this piece is about what actually happens once an employer goes to court to stop it, because that is where most of these disputes are genuinely decided, often within weeks, well before any substantive hearing.
Why This Is an Injunction Fight, Not a Trial
Non-compete and confidentiality disputes are almost always fought and resolved at the interlocutory stage. An employer who waits for a full trial to restrain a departing employee has usually already lost the practical benefit of the restraint, since the competitive harm happens in the weeks immediately after departure. The result is that the real legal battleground is the application for a temporary injunction, decided quickly, and frequently never followed by a substantive hearing at all because the outcome of the injunction application effectively resolves the dispute.
The Test the ELRC Actually Applies
Based on the reported case law, the Employment and Labour Relations Court applies the same general framework used in ordinary civil injunction applications, the three-part test from Giella v Cassman Brown & Co [1973] EA 358: a prima facie case with a probability of success, irreparable harm not adequately compensable in damages, and, if the court remains in doubt, the balance of convenience. This is confirmed in Craft Silicon Limited v Niladri Sekhar Roy [2018] KEELRC 1059, where an employer sought to enforce a one-year non-compete, non-solicitation and confidentiality clause against a sales employee who had resigned to join a direct competitor in a similar role, citing a specific at-risk client relationship and a threatened loss running into tens of millions of shillings.
The court applied the Giella test and declined to enforce the non-compete outright, finding the restriction unreasonably broad in the context of the employee’s right to earn a living, but granted a narrower injunction restraining solicitation of the specific client relationship at risk for the remainder of the restraint period. This outcome is the pattern worth understanding: Kenyan courts at the ELRC are not applying a distinct constitutional standard in place of Giella, but they are applying the ordinary test in a context where an unreasonably broad restraint is unlikely to satisfy the prima facie limb, while a properly scoped restriction aimed at a genuine, specific business interest has a real prospect of being enforced.
What Tends to Get Enforced, and What Does Not
The distinction that emerges from Craft Silicon v Roy is between an outright restraint on taking any competing role, which courts are reluctant to enforce because it goes further than protecting a legitimate business interest, and a narrower non-solicitation restriction tied to specific clients or relationships the former employee actually managed, which is far more likely to survive the prima facie test. An employer seeking an injunction should be prepared to show, with specificity, which clients, deals or confidential information are genuinely at risk, rather than relying on the existence of the clause alone. A restraint clause drafted to restrict only solicitation of named or identifiable clients, for a defined and reasonable period, gives an employer a materially stronger position at the injunction stage than a blanket non-compete.
Evidence at the Injunction Stage
Because these applications move quickly, the evidence an employer files with the initial application often determines the outcome more than anything argued afterward. Craft Silicon v Roy turned partly on the employer’s ability to point to a specific client relationship and a quantified threatened loss, rather than a general assertion that competition would cause harm. An employer preparing an urgent application should be ready to file, alongside the supporting affidavit, the specific client lists, deal records or confidential materials the departing employee had access to, and a clear account of how the competitor role overlaps with that access. Employees resisting an application are equally well served by evidence showing the restraint goes beyond what the employer can point to as a specific, identifiable interest, since that is where courts have been most willing to narrow or refuse relief.
What This Means for Drafting and for Litigation
For employers, the practical lesson is to draft restraint clauses with the injunction stage in mind: narrow the restriction to what is actually needed to protect specific client relationships or confidential information, rather than the broadest restraint a departing employee might accept when signing. For employees resisting an injunction, the strongest ground is usually to show the restraint goes further than protecting any specific, identifiable interest, which is exactly where the Craft Silicon court drew the line.
How We Can Help
Clay & Associates Advocates advises employers on drafting restraint clauses that will survive an injunction application, and acts for both employers seeking to enforce these clauses and employees resisting them at the ELRC. For the underlying question of whether a restraint clause is enforceable as a matter of contract drafting, see our guide on non-compete and restraint of trade clauses under Kenyan law. Contact our Litigation & Dispute Resolution practice before an employee’s notice period ends.
Sources: Giella v Cassman Brown & Co [1973] EA 358; Craft Silicon Limited v Niladri Sekhar Roy [2018] KEELRC 1059; Non-Compete and Restraint of Trade Clauses: Are They Enforceable Under Kenyan Law?.
Frequently asked questions
Does the ELRC apply a different test to non-compete injunctions than ordinary civil injunctions?
Based on the reported case law, the ELRC applies the same three-part Giella v Cassman Brown test used generally, rather than a separate constitutional standard, though the reasonableness of the restraint plays heavily into the prima facie limb.
Is an outright non-compete clause likely to be enforced by injunction?
A broad restraint on taking any competing role is less likely to succeed than a narrower restriction tied to specific clients or confidential information the employee actually handled.
How quickly are these disputes usually resolved?
Almost always at the interlocutory injunction stage, within weeks, since the competitive harm an employer is trying to prevent occurs in the period immediately after the employee’s departure.
What should an employer show to get an injunction granted?
Specific evidence of the client relationships, deals or confidential information genuinely at risk, rather than relying on the existence of the restraint clause alone.
