https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2211

Irakoze v Trust for Indigenous Culture and Health (TICAH) (Employment and Labour Relations Cause E792 of 2025) [2026] KEELRC 2211 (KLR) (30 July 2026) (Ruling) Neutral citation: [2026] KEELRC 2211 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Employment and Labour Relations Cause E792 of 2025 HS Wasilwa, J July 30, 2026 Between Judicaelle Irakoze Claimant and Trust for Indigenous Culture and Health (TICAH) Respondent Ruling 1.The Respondent/ Applicant filed a Notice of Motion application dated 30th April 2026 seeking orders: -1.Spent2.That this Honorable Court be pleased to Expunge the record or to seal the part of the Claimant’s pleadings that disclose the names of the 2nd Respondent’s Financial donors found in pages 62–77 of ‘The Claimant’s Supplementary List and Bundle of Documents’3.That the Claimant/ Respondent be condemned to pay the costs of this Application. Respondent/Applicant’s Case 2.The Applicant avers that that the Claimant filed a Supplementary List and Bundle of Documents dated 16th November 2025 comprising approximately 90 pages and 17 entries. Under item 14, the Claimant produced fundraising updates for January 2024 together with related budgetary reports containing confidential information relating to the Respondent’s interactions, transactions and relationships with various donors. 3.The Respondent/Applicant avers that the Claimant was contractually bound under Article 8 of the Consultancy Agreement dated 1st September 2024, as reaffirmed in her termination letter dated 23rd May 2025, to preserve the confidentiality of the Respondent’s sensitive information. 4.It asserts that this obligation extended to internal documents, operational processes, financial records, donor and partner information, strategic plans and other proprietary information, and expressly survived the termination of the Claimant’s engagement. 5.The Respondent/Applicant contends that, despite being aware of these continuing confidentiality obligations, the Claimant proceeded to file documents disclosing sensitive information, including the identities of the Respondent’s donors and the grant amounts received from each donor. 6.It is the Applicant’s case that such disclosure is prejudicial and contrary to the principles of natural justice, as it implicates third parties who are not parties to the proceedings. 7.The Respondent/Applicant further states that the disclosure has exposed it to the risk of breaching contractual obligations owed to its donors, thereby exposing it to potential claims and litigation by third parties. The donors operate under strict confidentiality and have threatened to withdraw their funding following the unauthorised disclosure of their identities. 8.It is the Respondent/Applicant’s case that, unless the Court expunges or seals pages 62 to 77 of the Claimant’s supplementary list and bundle of documents, it will suffer irreparable prejudice. Claimant/Respondent’s Case 9.In opposition to the application, the Claimant/Respondent filed a replying affidavit dated 27th May 2026. 10.The Respondent avers that the Applicant’s application seeking to expunge or seal pages 62–77 of the Claimant’s supplementary list and bundle of documents is misconceived, speculative and amounts to an abuse of the court process. She contends that the application is intended to suppress material evidence relevant to the just determination of the dispute. 11.The Claimant/Respondent avers that the application is unsupported by evidence as the Applicant failed to annex the alleged donor agreements containing confidentiality clauses, any communication from donors threatening to withdraw funding, any evidence of threatened litigation by third parties, or any documentary proof demonstrating actual prejudice. She asserts that the allegations of prejudice remain bare assertions unsupported by evidence. 12.The Claimant/Respondent further states that the impugned documents were filed solely for purposes of these proceedings and are directly relevant to the issues in dispute, including the Respondent/Applicant’s operational structure, financial and operational circumstances, management of MAMA budgets and projects, and the institutional environment surrounding her engagement and termination. She avers that the documents also support her pleaded case that she raised professional and operational concerns regarding the Respondent/Applicant’s management, including the handling of the Misoprostol Card Project and MAMA budgets, and that these concerns resulted in retaliatory treatment culminating in the termination of her engagement. 13.It is the Claimant/Respondent’s case that the Respondent/Applicant cannot deny the allegations of retaliation and operational impropriety while simultaneously seeking to exclude documentary evidence directly relevant to those issues. She further contends that the allegations that donors threatened to withdraw funding or institute legal proceedings are speculative, unsupported by any documentary evidence and do not establish actual prejudice. 14.The Claimant/Respondent further avers that the Respondent/Applicant has improperly invoked the provisions relating to the striking out of pleadings under Order 2 Rule 15 of the Civil Procedure Rules, 2010, whereas the impugned documents are evidentiary materials and not pleadings. She contends that questions relating to the admissibility, relevance, probative value and weight of documentary evidence are governed by Sections 5, 6 and 7 of the Evidence Act and ought to be determined at the trial upon production and testing of the evidence rather than through an interlocutory application. 17.The Claimant/Respondent also asserts that confidentiality obligations cannot prevent a litigant from placing before the Court documents reasonably necessary for the fair determination of a dispute. She avers that the impugned documents were filed strictly for evidentiary purposes within these proceedings and not for any malicious or collateral purpose. She further contends that excluding the documents would prejudice her constitutional right to a fair hearing under Article 50 of the Constitution by preventing her from fully presenting her case. 18.It is therefore the Claimant/Respondent’s case that the Respondent/Applicant has failed to establish any exceptional circumstances warranting the expungement or sealing of the impugned documents and urges the Court to dismiss the application with costs. Applicant’s Submissions 19.It is the Respondent/Applicant's submission that the sole issue for determination is whether the Court should direct that portions of the Claimant's pleadings and records disclosing the identities of the said donors be expunged from the court record and/or sealed from public access. 20.The Respondent/Applicant submitted that Order 2 Rule 15 of the Civil Procedure Rules vests this Court with jurisdiction, at an early stage of proceedings, to strike out any pleading or part thereof on grounds that it is scandalous, frivolous or vexatious, is likely to prejudice, embarrass or delay the fair trial of the suit, or otherwise amounts to an abuse of the process of the Court. This position was reiterated in Susan Muthoni Kimani v Land Registrar Thika & 2 others [2014] KEHC 680 (KLR). 21.It was submitted that the Claimant's filing of the document titled "Fundraising Update for January 2024" together with its related budgetary report, containing confidential information concerning the Applicant's donor interactions, transactions, and relationships, constituted a calculated and vexatious act intended to harass the Respondent/Applicant and occasion it financial prejudice, including the risk of loss of donor support. 22.The Respondent/Applicant submitted that the Claimant was at all material times aware that, pursuant to the Consultancy Agreement she had voluntarily executed, she was under a binding contractual obligation to maintain strict confidentiality in respect of her engagement. This obligation extended to non-disclosure of internal documents, operational processes, financial records, partner and donor information, strategic plans, and other proprietary or sensitive information, none of which was said to be relevant to the suit. 23.It is the Respondent/Applicant’s submission that the continuing obligation of confidentiality was expressly stipulated under Article 8 of the Consultancy Agreement dated 1st September 2024 and reaffirmed in the Termination Letter to the Claimant dated 23rd May 2025. 24.It was further submitted that it is inequitable, prejudicial, and contrary to the principles of natural justice for a party to make adverse references to, or implicate, entities or individuals in pleadings or submissions in a manner exposing them to disrepute, stigma, or reputational harm where such persons are not parties to the proceedings and have had no opportunity to be heard. 25.In support of the application to strike out the offending portions, reliance was placed on Transcend Media Group Limited v Independent Electoral & Boundaries Commission (IEBC) [2015] eKLR, where the High Court reaffirmed that pleadings may be struck out under Order 2 Rule 15 where they are scandalous, frivolous, vexatious, or otherwise an abuse of court process, and set out that:“A pleading is scandalous if it states(i)matters which are indecent; or(ii)matters that are offensive; or(iii)matters made for the mere purpose of abusing or prejudicing the opposite party; or(iv)matters that are immaterial or unnecessary which contain imputation on the opposite party; or(v)matters that charge the opposite party with bad faith or misconduct against him or anyone else; or(vi)matters that contain degrading charges; or(vii)matters that are necessary but otherwise accompanied by unnecessary details.” 26.It is the Respondent/Applicant’s submission that the Claimant’s filing of the “Fundraising Update for January 2024 together with the related budgetary report,” which contains confidential donor-related information, is a calculated and vexatious act intended to harass the Respondent and occasion it financial prejudice, including loss of donor support. 27.The Respondent submitted that the Claimant's negligent and/or reckless disclosure of the confidential information exposed, and continued to expose, the Respondent/Applicant to the risk of breach of its contractual obligations to donors, occasioning potential liability and the likelihood of third-party litigation. Reliance was placed on Luka Kipkorir Kigen v National Oil Corporation Limited [2014] eKLR, in which the court restated that pleadings may be struck out where frivolous, vexatious, prejudicial, or an abuse of process, and that courts may intervene to prevent misuse of the judicial process. 28.On this basis, it was submitted that the Respondent/Applicant was likely to suffer irreparable prejudice, as the affected donors operate under strict confidentiality and have threatened to withdraw their donations following the unauthorized disclosure of their identities without consent. 29.The Respondent/Applicant accordingly submitted that unless the Court urgently intervened by ordering the expungement and sealing of the Claimant's records disclosing the donors' identities, specifically pages 62–77 of the Claimant's Supplementary List and Bundle of Documents, it stood to suffer grave and irreparable financial prejudice. Claimant/Respondent’s Submissions 30.The Respondent submitted on five issues: whether the Application is properly brought under Order 2 Rule 15 of the Civil Procedure Rules, 2017; whether the documents found at pages 62-77 of the Claimant's Supplementary List and Bundle of Documents are "pleadings" susceptible to striking out or expungement under Order 2 Rule 15 of the Civil Procedure Rules, 2017; whether the Respondent has demonstrated sufficient grounds to warrant the expungement or sealing of the impugned documents; whether confidentiality obligations operate to prevent a litigant from producing documents necessary for the fair prosecution of a claim before a Court of law; who should bear the costs of this Application. 31.On the first issue, it is the Claimant/Respondent's submission that the Application is misconceived and ought to fail in limine, as it is not properly brought under Order 2 Rule 15 of the Civil Procedure Rules, 2010. 32.She submitted that Order 2 Rule 15(1) restricts its application to "pleadings," a term given precise technical meaning under Order 2 Rule 1 and Order 7 of the Civil Procedure Rules as confined to the Plaint, Statement of Claim, Defence, Reply, and Counter-Claim. Reliance was placed on Susan Muthoni Kimani v Land Registrar Thika & 2 others [2014] eKLR, where the Court held that striking out must be "exercised with extreme caution and only in obvious cases," applying only to pleadings that disclose no semblance of a cause of action or defence incurable by amendment. 33.It was submitted that the documents impugned at pages 62–77 of the Claimant's supplementary list and bundle of documents are evidentiary annexures and not pleadings, being expressly described in the Claimant's replying affidavit as "annexures forming part of evidentiary material and not pleadings capable of being struck out." 34.The Claimant/Respondent further relied on Transcend Media Group Limited v Independent Electoral & Boundaries Commission (IEBC) [2015] KEHC 7371 (KLR) for the proposition that the jurisdiction under Order 2 Rule 15 is not mandatory but permissive and must be exercised having regard to the quality and circumstances of the offending pleading, arguing that this permissive framework cannot be extended to evidentiary documents. 35.It is the Claimant/Respondent’s submission that documents filed as part of a party's evidentiary bundle fall to be governed by the Evidence Act (Cap. 80), particularly sections 5, 6 and 7 on relevancy, with any challenge to admissibility, relevance or weight properly reserved for trial. The Employment and Labour Relations Court Act, 2011 together with the ELRC (Procedure) Rules, 2016 vest this Court with jurisdiction to manage such evidentiary questions through trial procedure rather than through Order 2 Rule 15. 36.Relying on Luka Kipkorir Kigen v National Oil Corporation Limited [2014] eKLR, wherein the Court confirmed that "the issues of admissibility, relevance, weight and materiality are not grounds which would lead to a pleading being struck out." It was submitted that the Respondent thereby conflated the distinct procedural frameworks of striking out pleadings and objecting to admission of evidence, rendering the application procedurally misconceived and premature. 37.On the question of sufficiency of grounds, the Claimant/Respondent submitted that the Applicant failed to discharge the evidentiary burden necessary to sustain the relief sought, having annexed no donor agreements, no communication evidencing threatened withdrawal of funding, and no notice of threatened third-party litigation in support of its assertions. 38.It was argued that the allegations in the supporting affidavit of Jedidah Maina sworn on 30th April 2026, including the claim that donors threatened to withdraw their donations, remains bare, speculative, and unsubstantiated. 39.The Claimant/Respondent invoked the Court of Appeal's guidance in D.T. Dobie & Company (Kenya) Ltd v Muchina [1982] KLR 1, cautioning that a court must not act in darkness without the full facts of the case before it. She further relied on Transcend Media Group Limited v Independent Electoral & Boundaries Commission (IEBC) [2015] eKLR for the position that the power to strike out is discretionary and must be exercised on proper evidence, none of which had been placed before the Court. 40.On the question of confidentiality, the Claimant/Respondent submitted that the Applicant’s reliance on Article 8 of the Consultancy Agreement dated 1st September 2024 did not entitle it to the relief sought, as confidentiality obligations do not operate to prevent a litigant from producing documents reasonably necessary for the fair prosecution of a claim. 41.It was argued that this principle flows from the right to a fair hearing under Article 50 of the Constitution, which guarantees a party's right to adduce and challenge evidence, and from the public interest in the administration of justice. Reliance was placed on the English authority of Tournier v National Provincial and Union Bank of England [1924] 1 KB 461 for the qualification that confidentiality yields "where disclosure is under compulsion by law" or "there is a duty to the public to disclose." 42.The Claimant/Respondent submitted that in filing the impugned documents was not to damage the Respondent/Applicant or expose confidential information gratuitously. The documents were filed strictly in support of the Claimant's pleaded case specifically to demonstrate the operational, financial and institutional environment within which the matters complained of arose including the Respondent's financial circumstances at the material time, its management of MAMA budgets and projects, and the context of the Claimant's retaliatory termination following her raising of professional concerns. 43.She submitted that the documents were filed strictly to corroborate her pleaded case regarding retaliatory termination following concerns she raised over the misoprostol "card project" and management of MAMA budgets, and were not filed maliciously or for any collateral purpose. 44.It was further submitted that Articles 50(1), 50(2) and 20(3) of the Constitution obligate the Court to protect a litigant's right to a fair and public hearing and to adduce relevant evidence. In the employment context, the Employment Act, 2007 recognises the vulnerability of employees relative to employers, requiring the Court to guard against procedural manoeuvres restricting access to evidence. 45.It was submitted that the Respondent/Applicant failed to disclose that the very issues of budgeting, management conduct and retaliation were already pleaded before the Court, and that the application was calculated to shield those matters from scrutiny. 46.Reliance was again placed on D.T. Dobie & Company (Kenya) Ltd v Muchina, for the principle that no suit or document ought to be struck out unless "so hopeless that it plainly and obviously discloses no reasonable cause of action... and is so weak as to be beyond redemption and incurable by amendment," a threshold it was submitted the Respondent could not meet given the manifest relevance of the impugned documents. 47.On costs, it was submitted that the application was a non-starter, legally misconceived, unsupported by evidence, and an abuse of process calculated to suppress material evidence and delay fair adjudication. The Claimant/Respondent accordingly prayed that costs of the Application be awarded against her, invoking the principle that costs follow the event, with statutory basis in Section 27 of the Civil Procedure Act. 48.I have considered all the averments and submissions of the parties herein. In considering the prayers sought and whether or not to grant them, this court has to consider 2 issues.1.Whether the reliance on these documents would prejudice the respondent’s case.2.Whether the prayers being sought are intended to suppress material evidence relevant to the just determination of the dispute.3.Whether this court can grant the orders sought. Issue No 1 49.The respondents have submitted that the documents presented before the court are prejudicial to their case as the claimant seeks to rely on documents relating to parties not present before the court and who cannot defend themselves concerning the accusations before the court. 50.I have looked at the documents that the applicant contends that should be expunged from record and it is true that they relate to certain donors who are not before court and who may be prejudiced or affected without being given a chance to be heard. 51.It is also true from the claimants consultancy contract with the respondents dated 1/9/2024 at article 8 it is provided as follows:8.1 Both during the term of this Agreement and after the termination thereof, for whatever reason, the Consultant shall refrain from disclosing, in any way whatsoever and to any other party (including TICAH's employees, unless they are to be informed in connection with their duties for TICAH), any information of a confidential nature regarding TICAH's activities which has come to the Consultant's attention in the course of performing the services under this Agreement and whose confidential nature is clear or should reasonably be clear. This obligation shall apply, by way of example and without limitation, to any technical, financial and other information, the names of partners, proposed transactions, computer software. computer systems and databases, patent and/or trade secret laws. 52.It is indeed true that names of donors were not to be disclosed. It is therefore true that the documents at pages 62 to 77 of the claimant’s having mentioned donor names are again the express provisions of the consultancy and should not be allowed to be presented in the way they have been presented. On Issue No 2 53.It is not clear as to why the claimant wants these documents as part of her evidence. In order to prevent any miscarriage of justice I would direct that the documents be amended to conceal names of donors that could prejudice the respondent’s case while allowing the claimant to present her case based on the evidence that she requires. Costs shall be in the cause. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF JULY 2026.HELLEN WASILWAJUDGE