https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1672

Ratori v Carnaval Kenya Ltd (Cause E155 of 2026) [2026] KEELRC 1672 (KLR) (18 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1672 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Cause E155 of 2026 CN Baari, J June 18, 2026 Between Hamza Ratori Claimant and Carnaval Kenya Limited Respondent Ruling 1.This ruling relates to the Claimant’s Notice of Motion application dated 14th February, 2026, brought pursuant to Articles 22, 23, 31, 41, 47, and 50 of the Constitution of Kenya, the Employment Act, the Data Protection Act, and the Employment and Labour Relations Court Act. The Claimant/Applicant seeks the following reliefs: -i.That pending the hearing and determination of this Application, this Honourable Court be pleased to issue a temporary injunction restraining the Defendant, its directors, agents, servants or employees from harassing, intimidating, summoning, threatening, victimizing, detaining, confiscating the Plaintiff’s personal property, invading the Plaintiff’s privacy, or interfering in any manner with the Plaintiff’s employment, dignity and constitutional rights.ii.That this Honourable Court be pleased to declare that the seizure, inspection, copying, and interrogation of the Plaintiff’s mobile phone, WhatsApp communications, call logs, and personal data by the Defendant was unlawful, unconstitutional, and in violation of Article 31 of the Constitution of Kenya and the Data Protection Act, 2019.iii.That this Honourable Court be pleased to award the Plaintiff compensation of Kshs.5,000,000 (Five Million Kenya Shillings) for harassment, intimidation, unlawful interference with privacy, and violation of data protection rights arising from the illegal seizure and inspection of the Plaintiff’s personal mobile phone.iv.That pending the hearing and determination of the main suit, the Defendant be ordered to cease and desist from any further invasion of the Plaintiff’s privacy, dignity, personal data, and fair labour rights.v.That this Honourable Court be pleased to order the Defendant to pay the Plaintiff unpaid MLRO salary arrears calculated at Kshs. 550,000 per month for twenty (20) months, amounting to Kshs. 11,000,000, being remuneration unlawfully withheld despite the Plaintiff having fully performed MLRO duties.vi.That this Honourable Court be pleased to order the Defendant to pay the Plaintiff MLRO Risk Allowance of Kshs. 5,000,000 for exposure to statutory, criminal, regulatory and professional risk during the Plaintiff’s tenure as MLRO.vii.That this Honourable Court be pleased to issue interim protection orders restraining the Defendant from suspending, terminating, discriminating against, intimidating or retaliating against the Plaintiff for instituting this suit.viii.That the Officer Commanding Station (O.C.S.) Westlands Police Station be directed to oversee, enforce and ensure compliance with the orders of this Honourable Court.ix.That costs of this Application be provided for. 2.The Claimant avers that he was lawfully employed by the Respondent and diligently discharged his duties, thereby acquiring a legitimate expectation of fair labour practices and protection of his constitutional rights. 3.It is his case that he was initially engaged as a Legal Assistant earning Kshs. 50,000 per month without a clear job description or defined scope of authority. He further contends that the Respondent subsequently assigned him the functions of an Alternate Money Laundering Reporting Officer (MLRO), a highly sensitive statutory role involving compliance reporting, risk management, regulatory engagement, and internal investigations, but despite the substantial increase in responsibility and exposure to criminal and professional liability, the Respondent failed to revise his contract, remuneration or benefits. 4.The Claimant asserts that he performed the MLRO duties continuously for approximately twenty months without commensurate compensation, notwithstanding that the prevailing remuneration for an MLRO was about Kshs. 550,000 per month. 5.The Claimant further states that although he was employed as a Legal Assistant earning Kshs.50,000, the Respondent assigned him the responsibilities of an Alternate Money Laundering Reporting Officer (MLRO) for about twenty months without revising his contract or remuneration, despite the role attracting significantly higher compensation. He contends that the Respondent thereby unfairly exploited his labour and expertise in violation of Article 41 of the Constitution on fair labour practices. 6.The Claimant maintains that the Respondent unlawfully confiscated and accessed his personal mobile phone, including private WhatsApp messages and call logs, contrary to Article 31 of the Constitution and the Data Protection Act, 2019. He states that these actions subjected him to intimidation, humiliation and psychological distress, creating a hostile work environment and injuring his dignity and wellbeing. 7.It is his case that although the Respondent later issued an apology acknowledging wrongdoing, no compensation or protection against retaliation has been offered, leaving him in fear of victimization and further harassment. 8.The Claimant further contends that he remains exposed to regulatory, professional and security risks arising from the MLRO duties imposed upon him without adequate protection or compensation. He avers that the Respondent’s conduct demonstrates disregard for constitutional rights, statutory obligations and fair employment standards, and that unless restrained by the Court, the Respondent is likely to continue infringing upon his privacy, dignity and labour rights. 9.The Claimant asserts that he stands to suffer irreparable harm, including reputational damage, psychological trauma and loss of livelihood, which monetary compensation alone may not adequately remedy. He therefore maintains that the matter raises serious constitutional, contractual and labour law issues warranting urgent judicial intervention, and that the balance of convenience favours preservation and protection of his rights. 10.The Respondent opposed the application by a Replying affidavit sworn by Caroline Ntonkwa on 5th March, 2026. 11.The Respondent contends that the Application is devoid of merit and is founded on false representations by the Applicant. As a preliminary issue, the Respondent challenges the Court’s jurisdiction, arguing that since the Applicant admits earning a net salary of Kshs. 50,000, any employment related claim ought to have been filed before the Magistrate’s Court. 12.The Respondent further argues that the Applicant’s grievances primarily concern alleged violations of constitutional rights, including privacy, dignity, freedom from discrimination, and data protection, matters which, according to the Respondent, fall within the jurisdiction of the Constitutional and Human Rights Division of the High Court rather than the Employment and Labour Relations Court. 13.The Respondent further avers that, notwithstanding the jurisdictional impediments, the Applicant’s claim is unsustainable on the merits. While acknowledging that an incident occurred between the Applicant and the Respondent’s Security Manager, the Respondent contends that the Applicant has misrepresented the facts in an attempt to improperly attribute liability to the Respondent. 14.The Respondent states that following a complaint lodged by the Applicant regarding alleged harassment by the Security Manager, it promptly commenced internal investigations into the matter and notified the Applicant of the same through an email dated 30th April 2025. 15.The Respondent further confirms that investigations were undertaken, culminating in the issuance of a show cause letter to the Security Manager, Mr. Joram Ndeta, and his subsequent invitation to a disciplinary hearing, developments which were also communicated to the Applicant via email. 16.The Respondent contends that investigations into the Applicant’s complaint established that the Security Manager acted independently, contrary to company policy and without the Respondent’s authority or approval, thereby absolving the Respondent of liability. It further argues that the Applicant’s contract has since expired by effluxion of time, rendering the injunctive reliefs sought overtaken by events. 17.The Respondent denies the claims of underpayment and unpaid dues, maintaining that the Applicant was paid all terminal benefits in accordance with the contract he voluntarily accepted, and that there was no agreement for a salary of Kshs. 550,000. It also asserts that the remedies sought are final in nature and cannot be granted at an interlocutory stage. 18.The Respondent maintains that the Applicant has failed to disclose any reasonable cause of action against it or raise any valid employment dispute warranting the intervention of the Court. It therefore contends that the suit is unsustainable and prays that the Application be dismissed with costs. 19.Parties canvassed the application through written submissions, which have been duly considered. Analysis and Determination 20.The issues that present for determination are: -i.Whether this Court has jurisdiction to entertain the Application and suit hereinii.Whether the Claimant has satisfied the threshold for grant of interlocutory reliefs Whether this Court has jurisdiction to entertain the Application and suit herein 20.The Respondent has challenged the jurisdiction of this Court on two fronts. First, that the Claimant’s salary of Kshs. 50,000 places the dispute within the pecuniary jurisdiction of the Magistrates’ Court, and secondly, that the issues raised concern alleged violations of constitutional rights falling within the jurisdiction of the Constitutional and Human Rights Division of the High Court. 21.Jurisdiction, they say, is everything, and without it a Court must down its tools. (See Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR)). The Court must therefore first satisfy itself that it is properly seized of the dispute. 22.Under Article 162(2)(a) of the Constitution and Section 12 of the Employment and Labour Relations Court Act, this Court has exclusive jurisdiction to hear and determine disputes relating to employment and labour relations. The mere fact, therefore, that constitutional issues are intertwined with an employment dispute does not oust the jurisdiction of this Court. In United States International University (USIU) v Attorney General [2012] KEHC 5516 (KLR), the Court held that the Employment and Labour Relations Court is competent to interpret and apply the Constitution in disputes arising from employment relationships. 23.Similarly, in Daniel N. Mugendi v Kenyatta University & 3 Others[2015] KEELRC 538 (KLR), the Court of Appeal affirmed that specialized courts established under Article 162(2) have jurisdiction to determine constitutional questions arising within matters falling under their mandate. 24.The Claimant’s grievances arise directly from his employment relationship with the Respondent, including the allegations of unfair labour practices, unlawful assignment of duties, harassment in the workplace, invasion of privacy during employment, and unpaid remuneration. These matters without doubt fall squarely within the jurisdiction of this Court. 25.On the Respondent’s argument regarding pecuniary jurisdiction, my view is that the jurisdiction of the Employment and Labour Relations Court is not ousted merely because subordinate courts possess concurrent delegated pecuniary jurisdiction. Further, one of the issues the Applicant raises is underpayment, where he alleges that his salary ought to have been Kshs. 550,000/- and not Kshs. 50,000/-, which makes it an issue for determination at the full hearing rather than at the interlocutory stage. 26.The Court therefore finds that it is properly seized of jurisdiction in the matter. Whether the Claimant has met the threshold for interlocutory relief 27.The principles governing the grant of interlocutory injunctions were settled in Giella v Cassman Brown & Co. Ltd[1973]EA 358, where the court held that the Applicant must establish a prima facie case with a probability of success, demonstrate a likelihood of irreparable injury incapable of compensation by damages, and, where in doubt, the balance of convenience shall apply. 28.The Court is also guided by the decision in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KECA 175 (KLR), where a prima facie case was defined as one disclosing an apparent infringement of a right requiring rebuttal from the opposite party. 29.The Claimant’s position is that he was assigned sensitive MLRO duties for approximately twenty months without corresponding remuneration or contractual safeguards. He further asserts unlawful confiscation and inspection of his personal mobile phone, WhatsApp messages, and call logs by the Respondent’s Security Manager. 30.The Respondent does not deny that the incident occurred; rather, it contends that the Security Manager acted independently and contrary to company policy. 31.At this interlocutory stage, the Court is not required to make definitive findings on liability. However, the admitted fact that investigations were commenced and disciplinary proceedings instituted against the Security Manager lends credence to the Claimant’s assertion that the impugned conduct indeed occurred. 32.The Court is therefore satisfied that the Claimant has established a prima facie case concerning the alleged violation of his constitutional right to privacy under Article 31 and fair labour practices under Article 41. 33.Further, it is my view that unlawful access to personal communications and data cannot easily be remedied by monetary damages alone. However, the Court must distinguish between preservatory interim relief and final reliefs. The prayers seeking declarations that the Respondent violated the Constitution, compensation of Kshs. 5,000,000, payment of Kshs. 11,000,000 in alleged salary arrears, and Kshs. 5,000,000 risk allowance are substantive and final remedies, which are incapable of determination at an interlocutory stage without a full hearing and evidence. 34.Courts have consistently held that final orders ought not issue at an interlocutory stage except in the clearest of cases. 35.The Respondent has also demonstrated that the Claimant’s contract has already lapsed by effluxion of time; hence, prayers restraining termination, suspension, or interference with employment have largely been overtaken by events. 36.In whole, I find the Claimant’s motion devoid of merit, and is hereby dismissed with costs in the cause. 37.Orders accordingly. SIGNED, DATED, AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS 18TH DAY OF JUNE, 2026.C. N. BAARIJUDGEAppearance:Mr. Hamza Ratori the Claimant/Applicant present in person.Mr. Oyando present for the RespondentMs. Esther S-C/A