https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1957

Style Industries Ltd v Kasumba (Cause 1086 of 2018) [2026] KEELRC 1957 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KEELRC 1957 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Cause 1086 of 2018 NJ Abuodha, J July 10, 2026 Between Style Industries Limited Claimant and Olivier Kasumba Respondent Judgment 1.The Claimant through its Memorandum of Claim dated 26th June, 2018 pleaded inter alia: -a.That it employed the Respondent as its production/Technical Manager through a letter of appointment dated 29th October, 2012 which eventually became his employment contract which employment took effect on 1st November, 2012.b.That the employment contract set out terms some of which were to subsist even after determination of the employment relationship which included nondisclosure of confidential information the Respondent received during his employment and to deliver on notice during resignation/termination all notes and electronic data records made or received by the Respondent during the course of his employment with the Claimant.c.That by a letter dated 28th July, 2018 the Respondent gave it notice of his resignation from employment and he remained in employment until 31st August, 2017 until when his resignation took effect.d.That during the course of employment it provided the Respondent with equipment to aid him in the performance of his work in accordance with the Employment contract. The equipment included a Dell Laptop and a transcend I TB external back-up hard disk.e.That the Respondent in the course of his employment he interacted with its sensitive information relating to it and its business which constituted confidential information. That part of the confidential information was contained in the laptop and the Hard-disk which the Respondent used on a daily basis for his work.f.That following the Respondent’s end of contract on 31st August, 2017 and as per Clause 12.3 and clause 18 of the employment contract the Respondent was required to deliver or return all notes and electronic data records, all property, documents and other tangible items made or received by him while in his employment with the Claimant.g.That the Respondent as per clause 12.2 of the Employment Contract was prohibited from disclosing, using for his purposes or causing any unauthorized disclosure of the confidential information.h.That the Respondent in flagrant breach of the obligations above on or about 31st August, 2017 returned the Laptop but before returning it he formatted it without its approval deleting all the relevant information. That he failed to deliver all the information contained in the Laptop and the hard-disk, refused to return its hard disk which was its property, he has been using the information for his own purposes without its authority.i.That the Respondent’s continued possession of and refusal to return the hard-disk constitutes unlawful detention of the hard disk and has deprived it of its property in and the use of the hard disk, the information therein and in the laptop thereby causing it loss.j.That the Respondent’s action of using confidential information and contacting the Claimant’s suppliers for his own purposes was detrimental to it, caused and continues to cause it loss and exposes it to potential loss of its goodwill, business and competitive advantage.k.That it has issued demand letters to the Respondent requiring him to return the hard disk, cease and desist from the blatant breaches of the employment contract and render a detailed account of the information, records, notes, electronic data and confidential information that was contained in the laptop and hard disk. 2.The Claimant in the upshot prayed for the following against the Respondent: -a.A declaration that the Respondent is in breach of his post-termination obligations set out in the employment contract.b.A mandatory injunction compelling the Respondent to-i.Return the external back up hard-disk issued to him by the Claimant in the course of his employment within a period of 7 days from the date of issuance of the order.ii.Render a detailed account of the information, records, notes, electronic data and confidential information contained in, copied or deleted/ removed from the hard-disk during the period of the Respondent’s employment with the Claimant andiii.Render a detailed account of the information, records, notes, electronic data and confidential information contained in, copied or deleted/removed from the Dell Laptop.c.A permanent injunction restraining the Respondent from using the Claimant’s list of suppliers, contacting them and or using, disclosing the information, records, notes, electronic data and confidential information contained in, copied from or deleted/ removed from the hard disk and or laptop or otherwise obtained by the Respondent by virtue of his employment with the Claimant.d.General damages for detention of the Hard-disk or alternatively, general damages for conversion of the Hard-disk.e.Damages for breach of contractf.Cost and interest of this suit. 3.The Respondent filed his Amended Memorandum of reply dated 31st March,2023 and averred inter alia as follows: -i.The Respondent admitted that he was employed by the Claimant as its production/technical manager where he was employed by Stripes Industries Limited which changed its name to Strategic Industries Ltd and when Godrej acquired Strategic Industries Ltd in 2011 it changed its name to style Industries Ltd. That the management of Style Industries approached all former employees of Strategic Industries Ltd and encouraged them to sign employment contracts in 2012 but he did sign the contract for he did not agree with the terms stated therein.ii.That he has never disclosed any confidential information if at all it existed. That he was given a laptop and external had disks by the Claimant to facilitate in his work. That he had many hard disks some provided by the employer and others he bought on his own account. That it was a standard operating procedure that the Respondent had to transfer all his creations from the laptop to the external hard disks he used to surrender to the ICT department who upon receipt transferred the said information to the Company saver.iii.That at the time he received the laptop from the Claimant it had no information at all. All work-related information was fed on to the laptop by the Respondent, submitted to the Information Technology & Finance departments of the Claimant and subsequently uploaded on to the Claimant’s servers by the ICT Department. That the said information was never stored on the external hard disks as alleged.iv.That being a creator he used to come up with several ideas some of which were photos/pictures, videos and/or clips and designs. That the said information could hardly be transferred from his work computer to the company server via email. That he strictly adhered to the Company process whereby he transferred his creations to the hard disks and then to the Company computer servers.v.That he was the source of all that information referred to by the Claimant as sensitive/confidential information as he had been hired by the Claimant owing to his expertise on the same due to his prior extensive knowledge of the Claimant’s industry, general manufacturing processes in the industry, industry pricing models, customers, suppliers and other players in the industry having worked for the two former employers between 2003 to 2012 which were engaged in similar business as the Claimant.vi.That his job description included creating processes from the initial stage of raw materials to production, manufacturing processes, creation of style, giving of names to a final product and finally training the team how to use it. That his final piece of work would be handed over to the company for marketing and sales. He used to come up with ideas and actualize them.vii.That he never disclosed the Claimant’s suppliers let alone customers and the Claimant’s suppliers are publicly known companies. That in this nature of business, product suppliers are publicly listed companies. Any interested member of public may easily approach the suppliers for the supply of raw materials. That said suppliers and materials are listed on the end product so they are publicly known.viii.That after his resignation he was required to return all company assets in his possession whereupon he would be paid his contractual dues. That he returned the laptop that had been issued to him by the Claimant to Mr. Denis Kobe of the IT Department, in proper working condition with all data and information relating to the Claimant’s business as well as his personal information at the time of his clearance.ix.That after handing over the laptop to the above Denis Kobe the said Denis Kobe suggested that the laptop be formatted before being passed on to another employee as it contained some of his personal information.x.That having returned all of the Claimant’s assets in his possession and complied with all conditions imposed by the Claimant he was issued with clearance certificate and he was paid all his terminal dues.xi.The Respondent prayed for dismissal of the Claimant’s claim with costs. Evidence 4.Both the Claimants’ and Respondent’s case was heard on 24th June,2025 where the Claimant called two witnesses. The first Claimant’s witness was Morrin Susan Mwihaki the HR Manager of the Claimant herein referred as CW1. She adopted her witness statement written on 26th March, 2025 and documents filed with the claim as her evidence in chief. She stated that the Respondent was their employee who left their employment. 5.She stated that upon an employee resigning they were usually required to clear upon exit. That the Respondent did not return the hard drive assigned to him. That it contained the Claimant’s trade information and there was risk it could be used by a competitor which would affect the company negatively. 6.In cross-examination she stated that she had worked for the Claimant for four and half months and she did not have the details of the laptop and the IT Manager would answer that. That the items were in the Respondent’s possession. That it was possible he could have saved personal information on the laptop. That the information was about their products and production process. 7.She confirmed that she did not know who was given the information and she did not know if it was acted upon. That formatting was to be approved by the IT person. That the Respondent deleted information from the Laptop and they reported the issue to the management. That the deletion was detected a few days after. 8.She confirmed that she did not know if it was after the management had issued a clearance certificate. She was not able to tell how much the Claimant has lost so far. She would not differentiate between their products and those of their competitors. That their suppliers could easily be found by google. That the Claimant was right to sue to protect its interest. That the Respondent disclosed the formulation of their products. That formulation was by the production team and the Respondent had the formulation off head. 9.In re-examination CW1 clarified that the information in the hard disk belonged to the Claimant. That if the information is shared it prejudices the Claimant in terms of competition. That they do not publish their suppliers they are known within the organization. That the clearance was issued on 31/8/2017 the time the Respondent resigned. That the Claimant lost funds and customers when the Respondent was employed by a competitor. 10.The second Claimant’s witness was Kelvin Mwilu the Manager IT Services of the Claimant herein referred as CW2. He stated that he had worked for 6 years and he was conversant with the matter. He relied on his witness statement written on 12/9/2024 as his evidence in chief. 11.He stated that they do hard and software management and current system administration. That the Respondent was issued with laptop and hard drive which were to help in daily duties. That the information in the gadgets belonged to the employer. That the Respondent only returned the laptop and not the hard drive. That the laptop was formatted when it was returned. 12.He stated that the hard drive had the Claimant’s information such as IT configuration, production processes and customer database. That showing the information jeopardizes the Claimant's business interest. 13.In cross examination CW2 stated that he has never worked for the Respondent for he had left when he joined the Claimant. That the laptop was brought when formatted and had no information. That HR was informed which was detected later after clearance. That the laptop had the Claimant’s information before it was formatted. 14.He confirmed that the Claimant did not directly notice their information had been shared. A vendor called them but he could not remember the name of the vendor and what was shared. That the contract had a confidentiality clause. That he was not conversant with the Respondent’s contract. He did not know the capacity of the hard drive. 15.He confirmed that the Respondent disclosed Claimant’s information to a 3rd party but he did not know what information was shared. That the Claimant feared unfair competition from the information shared. 16.In reexamination CW2 clarified that the Respondent was employed in 2012 and he would not know the amount of information shared. The Respondent used to come across a lot of Claimant’s information during his employment. That the vendor called and asked about the information that was shared. That there was confidentiality clause after separation which was part of sharing information under clause 12 of the contract. 17.He clarified that they only checked the hardware of the laptop when it was returned. That the disk had cross departmental information which was normal for team work. That the sharing would compromise the target market. 18.The Respondent on the other hand called two witnesses himself and another. The Respondent herein RW1 testified and adopted his witness statement dated on 31/3/2023 and the documents filed with the reply as his evidence in chief. 19.He stated that he joined the Respondent in 2003 as technical head. His role was creation, development and use of the product. That he would hand over the product to the company. That the Claimant’s product was dealing with hair and it is still in market. That he was allocated a dell laptop and hard disk. He further stated that he did not format the laptop for the IT asked him to format personal information from the laptop who confirmed everything was in order. That all creations were transferred to the Claimant’s server. That he used to use hard drive for photo shoot. 20.He stated that he was called after two weeks and told not to join another company. That he got another job after two months. That after he did not go back to the Claimant and it started following him and intimidating him. That he was issued with a clearance certificate. 21.In cross-examination RW1 confirmed that the company he works for produces the same products as the Claimant. That he would use the hard disk to transfer information to the Claimant’s server. That he was employed to create for the Claimant and the creations belonged to the Claimant. That he was not supposed to share Claimant’s information during and after employment. He did not provide the checklist of what he returned. 22.He confirmed that he did not format the laptop and that the IT did. That every time he did any work in the laptop he would transfer to the server. That he did not store his work in the laptop. That he came into contact with many people post-employment with the Claimant who were reaching out for him. 23.He stated that the Claimant wanted him to return to work after he resigned and that he returned all the hard discs and he has not shared any of Claimant’s information. 24.In reexamination he clarified that the contract had a confidentiality clause but not non-compete clause. That he could work for any company. That he signed a checklist when he returned the Claimant’s property. 25.The second Respondent witness was Kiarie Kimani herein referred as RW2 who adopted his statement dated 21/32023 as his evidence in chief. 26.He stated that he used to work for the Claimant and left as a General Manager. That the Respondent was his colleague. That he was declared redundant in March 2018. 27.He stated that he used to share relevant information with production department where the Respondent was based. That he knew the Respondent was resigning and he worked hand in hand with the HR. That the Respondent’s contract did not have a non- compete clause. 28.In cross examination he confirmed that he was part of the team that drafted the Respondent’s contract. That it contained confidentiality clause. That the Respondent was in production and he was in operations. That the Respondent returned his laptop but he did not witness its return. That the Respondent joined another company after he left the Claimant. 29.He confirmed that the Respondent was in strategic position where he had access to a lot of information. That the Claimant slowed down in the innovation in the market. That they received a lot of complaints from the market over the Claimant’s products. 30.In reexamination RW2 clarified that there was clearance procedure and the Respondent followed the procedure. That the Respondent was applying the same skills he had when working for the Claimant. Claimant’s Submissions 31.The Claimant’s advocates CJ Law & Associates LLP Advocates filed written submissions dated 4th September, 2025 and on the issue of whether the Respondent breached clause 12 of the employment contract by disclosing or using the Claimant’s confidential information after termination of employment counsel submitted that the Respondent did breach the said clause which prohibits the disclosure of or use of the confidential information. Counsel relied on among others the case of SBI International Holdings AG (Kenya) v Amos Hadar (2015) eKLR on the principle that an employee owes a continuing duty of confidentiality even after termination of employment. Counsel submitted that during hearing the Claimant’s witness credibly testified that the Respondent disclosed and used confidential information specifically a list of the Claimant’s suppliers after his termination. That it was established that the Respondent contacted these suppliers and engaged them in discussions pertaining to the Claimant’s business. 32.That the Respondent alleged that he had independently acquired the supplier contacts and that he was responsible for introducing them to the Claimant. However, the said assertion does not absolve the Respondent of liability because once the contacts were integrated in to Claimant’s operational framework they became part of the Claimant’s confidential information under clause 12 above. 33.It was the Claimant’s submissions that the Respondent not only contravened the clause 12 but also general duty of fidelity imposed by common law and the Respondent’s admission that he contacted the Claimant’s suppliers post termination and discussed business matters clearly constitutes a breach of Clause 12 and the common law duty of fidelity. 34.On the issue of whether the Respondent failed to return the company’s external hard disk and if so whether such failure amounted to unlawful detention or conversion of company property counsel submitted that the Claimant’s witnesses testified that during clearance process the Respondent failed to return a 1-Terabyte external hard disk belonging to the Claimant. 35.It was the Claimant’s submissions that the said hard disk contained highly sensitive and proprietary business information including modelling and composition details of the Claimant’s hair products, contact lists of customers and suppliers as well as other trade related secrets. That disclosure or use of the confidential information by the Respondent or third party would expose the Claimant to significant commercial loss, as competitors could exploit the data to gain an unfair market advantage. 36.Counsel submitted that the Respondent’s failure to return the said hard disk amounted to unlawful detention and/or conversion of company property and a violation of both contractual and common law post-employment obligations. That despite the Respondent testifying that he was issued with a number of hard disk he was unable to state the ones he returned and the ones he did not return. That he failed to adduce evidence to support his claim of having returned the hard disks and made a casual and unsupported assertion that he did not possess any hard disks. 37.On the issue of whether the Respondent deliberately erased data from the Claimant’s laptop and if so whether such conduct caused loss or damage to the Claimant counsel submitted that the Laptop used by the Respondent during his tenure was formatted during the clearance process without the Claimant’s instruction or knowledge resulting in deletion of all notes, records and electronic data. That the Respondent alleged that the laptop contained his personal information and the IT personnel Denis Kobe instructed him to format but failed to call the said Denis Kobe as his witness to corroborate this assertion. 38.It was submitted that the formatting of the laptop and the resulting erasure of all data was a deliberate act by the Respondent and the Claimant suffered loss having invested substantially in the data that had been collected and stored on the laptop. That the data was never transferred to the company’s server or any other backup location as alleged by the Respondent. 39.Counsel submitted that the Respondent fully aware of the sensitivity and importance of the data had a legal and contractual duty to ensure data’s safe return or proper transfer. That his failure to take reasonable steps to preserve or back up the data, coupled with a unilateral formatting of the device amounts to gross negligence if not a wilful act intended to sabotage or conceal information. This conduct resulted in the permanent loss of valuable company data, causing damaged to the Claimant’s business operation. 40.On the issue of whether the Claimant is entitled to the reliefs sought counsel submitted that the Claimant proved on a balance of probability that the Respondent breached his post-employment obligations hence it is entitled to the reliefs sought in the claim. Respondent’s Submissions 41.The Respondent’s Advocates M. Waititu Advocates filed written submissions dated 20th November, 2025 and on the issue of whether the Respondent deleted and removed all information, notes, records and electronic data contained in the company computer laptop counsel submitted that the Claimant alleged that the Respondent removed confidential information, which he deleted from the company laptop. The Claimant’s witnesses all stated that the Respondent was employed on 29th October 2012 as per the Employment Contract. The said Employment contract at clause 12 stated that confidential information and breaches, which the claimant alleged the Respondent had breached. Counsel submitted that the Claimant did not specifically state the kind of information that was being used by the Respondent on a daily basis and that the Claimant could not rely on speculation to accuse the Respondent of the act they assumed he did. That the Respondent had informed the Claimant a month earlier of his resignation through a letter and on 31st August 2017, he returned all company properties, which was evidenced by the issuance of a clearance certificate. 42.It was counsel’s submissions that “CW1” did not state what kind of information was contained in the laptop before it was surrendered and what information was deleted. The formatted laptop was not produced in court to show that the laptop had no content at all. That during cross-examination, CW1 indicated that the IT department informed the Human Resource that the Laptop was formatted. When she was asked why the Respondent was given a certificate of clearance if he had not surrendered all the company properties, she indicated that the IT department discovered a few days later that the laptop had been formatted. This statement was convenient for the Claimant since CW1, being a qualified Human Resource Manager was aware of the due process, which she confirmed that the Clearance Certificate was only issued upon verification by all departments and finally Human Resource Manager. The Certificate of Clearance was only issued upon approval and all company clearances. 43.Counsel submitted that the Respondent during the hearing, informed the court that when he took the laptop to the IT Department, the laptop was checked and the IT officer found that it contained the Respondent’s personal information (pictures of her daughter), and he was asked to delete them, which he did. The said IT officer did not testify in court, which was understandable since he had since left the Company. 44.Counsel submitted that the Respondent denied any wrongdoing and admitted to having erased personal data from the company laptop only as part of a handover process under the guidance of the Claimant’s IT personnel, and had not misused or disclosed any confidential information. That after the Respondent’s resignation in August 2017, he returned all company property (including the laptop, and all external hard drives) in good order and was issued with a clearance certificate and paid all his dues. The Claimant’s claims of misconduct arose only later, when it learned the Respondent had secured new employment with a competitor company, despite the absence of any non-compete agreement. 45.Counsel submitted that the Claimant needed to prove, with concrete evidence, thati.the Respondent took or disclosed identifiable confidential information belonging to the Claimant without authorization, andii.the Respondent used the said identifiable confidential information for his own benefit.iii.the Respondent’s act resulted in quantifiable loss (such as actual loss of revenue or business opportunities). 46.Counsel submitted that the Claimant had failed to meet this burden on all accounts while relying on section 107 of the Evidence Act on a party proving the facts they wish the court to rely on. That the Claimant could not succeed by relying on suspicions, conjecture or the fact of the Respondent’s subsequent employment. A mere suspicion or speculation was not proof and could not form the basis of a finding of liability. The Evidence Act required proof of the specific facts alleged for breach. If such evidence was not forthcoming, the claim must fail. 47.On the issue of whether the Respondent retained the hard-disk containing the Claimant’s confidential information counsel submitted that CW1 testified that the Respondent failed and refused to return a hard disk hence the Respondent refused to deliver to the Claimant information, notes, records, electronic data and confidential information contained in the hard disk. However, the Claimant failed to specify which kind of confidential information was not delivered by the Respondent. 48.Counsel submitted that an employee did owe an implied duty of fidelity and good faith to the employer, which included respecting confidential information. However, critically, once employment ends, the scope of this duty narrowed. Counsel relied on the case of Leland I. Salano v. Intercontinental Hotel (2013) eKLR where Rika J observed that while an implied obligation of confidentiality could survive the termination of employment in the absence of an express clause, “once the employment relationship was at an end, the employee’s obligation to retain the confidential information of the former employer was less onerous.” 49.That the court affirmed that ex-employees were free to use their general skills and knowledge, and even to join competitors, so long as they do not appropriate true trade secrets or confidential proprietary data. In short, not every piece of information acquired during employment remains protected after departure; only information truly confidential in nature (e.g. secret formulas, strategic plans, customer lists not publicly available, etc.) might be subject to post- termination confidentiality, and even then, the employer must prove its secrecy and sensitivity. 50.Counsel submitted that there was need for specific proof of confidential material and that Salano’s case underscored that an employer alleging breach of confidentiality must identify the specific confidential information at risk and prove that it was safeguarded as confidential. That in the present case, the Claimant had not particularised any specific trade secret or confidential item that the Respondent supposedly misused. The Claimant did not produce evidence of a confidentiality policy or particulars of the breached confidential information. In fact, the Respondent put the claimant to strict proof of any contractual confidentiality clause, and none was proven. In the absence of such proof, the employee was not limited from utilizing his own skills and experience in a new job. 51.Counsel submitted that the Respondent testified that all business-related data had already been backed up to the Claimant’s servers and/or handed over to the IT and Finance departments during his service. The formatting, therefore, did not cause the Claimant to lose any proprietary information. It was a procedural step carried out with the Claimant’s knowledge. There was no evidence that the Respondent surreptitiously deleted files to conceal wrongdoing; on the contrary, the deletion was done openly at the suggestion of the Claimant’s agent, after all relevant files were secured by the company. This was not rebutted during the hearing. 52.Counsel submitted that the claimant had not shown that the Respondent took or kept any confidential files. The Respondent had used external hard disks during employment as a means to transfer large design files and data to the company’s servers (due to email size limitations). These external drives were part of the workflow and were routinely surrendered to the ICT department for uploading data to the company’s systems. That the Claimant produced no evidence to the contrary that all work product and information he generated for the Claimant was delivered to the Claimant’s possession in the ordinary course. The Claimant’s insinuation that the Respondent might have kept copies for himself or “wiped” data to later use it is pure speculation. There were no forensic audits, system logs, or witness testimonies presented to show that the Respondent transferred files to any personal device illicitly or that he ever accessed the Claimant’s data after his departure. In the absence of such evidence, the allegation remained an unproven hypothesis. Counsel submitted that “a suspicion, however strong, cannot take the place of proof.” 53.On the issue of whether the Respondent has used information that was contained in the company laptop and/or the hard disk for his own purpose or benefit; and whether the Claimant has suffered any loss due to the use of confidential information by the Respondent counsel submitted that there was no disclosure to third parties. That the Claimant further implies that the Respondent may have disclosed sensitive information to his new employer (a competitor, Di-Lorenzo Co. Ltd) or others, thereby causing loss of business without any shred of evidence to support this. The Respondent’s new employment in the same industry by itself was not proof of misconduct. The Claimant did not call any witness from the market or the competitor to testify that the Respondent divulged trade secrets or confidential client information. 54.Counsel submitted that no identical product, design, or strategy from the Claimant was shown to have been replicated by the Respondent at the new company. Indeed, the Respondent’s unrebutted testimony was that he was headhunted for his creative skills and industry experience, which predated his time at the Claimant company. The knowledge he possessed about manufacturing processes, suppliers, pricing models, etc., was largely general know-how accumulated over decades in the industry. Much of this information (e.g. identities of suppliers and raw materials) was not exclusive to the claimant as the Respondent noted, the claimant’s suppliers were publicly known companies and were even identified on product labels. Sharing or using such public domain or industry generic information is not a breach of confidentiality. 55.Counsel submitted that the Claimant has identified no specific secret formula, undisclosed client list, or proprietary technology that the Respondent allegedly took and leaked. Without such specificity, the accusation of disclosure remains fatally vague and unsubstantiated. 56.Counsel submitted that the Respondent adhered to compliance with Contractual Obligations. That the Claimant has failed to demonstrate any breach of an express contractual clause. 57.It was submitted that there is absolutely no proof that the Respondent breached the confidentiality clauses after his resignation. On the contrary, all indications were that he acted within his rights for example, it was uncontroverted that he never signed any post-termination non-compete or non- disclosure agreement that would bar him from joining a competitor or using his professional know-how. The Claimant could not retrofit such obligation ex post facto by inviting the court to infer misconduct where none was evidenced. 58.On proof of loss counsel submitted that if the Claimant sought damages for “loss of revenue,” it must meet the legal requirement for proving such loss. The law treats loss of revenue or profits as a form of special damages, which must be specifically pleaded and strictly proved with certainty. That the courts have emphasized that special damages (like a claim of lost profits or revenue) cannot be awarded unless clearly quantified and supported by evidence. In this case, the claimant did not provide any specific figure of revenue loss directly attributable to the Respondent’s actions, nor any financial records or expert evidence to substantiate such a loss. Alleging that “revenue was lost” without more is inadequate. It is trite that unproven allegations of loss cannot ground an award of damages. 59.Counsel submitted that additionally, the Claimant failed to prove a causal link between the alleged breach (deletion/disclosure of information) and the purported loss of revenue. This meant showing not only that a breach occurred, but that it directly led to the loss. The Claimant had not established this chain of causation. There was no evidence that any deleted information was of such value to the Respondent that its absence or misappropriation impacted the claimant’s business. Counsel relied on the case of Equity Bank Ltd v. Gerald Wang’ombe Thuni (2015) eKLR and reaffirmed in Okulu Gondi v. South Nyanza Sugar Co. Ltd (2018) eKLR, to submit that special damages, as noted, must be specifically pleaded and proved they could not be awarded on the basis of speculation and conjecture. 60.Counsel submitted that allegations were speculative and malicious that the manner in which this claim arose further underscored its lack of merit. The Respondent resigned and left the company in good standing in August 2017. The Claimant raised no complaint at the time of exit; indeed, it cleared him and paid all dues. It was only after the Respondent’s career move to a rival company (in November 2017) became known that the Claimant rushed to file this suit in 2018. The timing suggests that the Claimant was driven by a fear of competition rather than any concrete incident of disclosure of confidential information. The suit appeared to be a vehicle to harass the Respondent for pursuing his profession elsewhere, as evidenced by the Claimant even going so far as to serve court papers on him at his new workplace, embarrassing him in front of his new employer. Such conduct was aimed at intimidating the Respondent, oughy not be rewarded by this Court. 61.Counsel submitted that in the absence of proof of an actual confidentiality breach, the Claimant’s case reduces to an impermissible attempt to enforce a non-compete by way of litigation. This is contrary to public policy and the freedom of employment; employees are at liberty to change jobs and apply their skills, unless a valid contract restricts them (with compensation, as required for enforceable restraints of trade). The Claimant had no such agreement, and it cannot conjure one now through allegations of “confidential information” misuse without evidence. Determination. 62.This court has reviewed and considered the pleadings, testimonies, submissions and authorities relied on by both parties and comes I have up with two main issues: -Aa. aa.a.Whether the Respondent was in breach of his post termination obligations set out in the employment contractb.Whether the Claimant is entitled to the reliefs sought. Whether the Respondent was in breach of his post termination obligations set out in the employment contract. 63.In this case, it is not in dispute that the Respondent was employed by the Claimant in 2012 as a production/technical Manager. He resigned vide a letter dated 28th July, 2018 and continued to work until the 31st August, 2017 as per his resignation letter. It was also clear that the Respondent had worked with two former companies from 2003 to 2011 dealing with the same business until the Claimant acquired the former business in 2011 and absorbed all the former employees. 64.The Respondent exited the employment of the Claimant on 31st August, 2017 and was issued with a clearance certificate and his contractual dues paid. It was also not in dispute that the Respondent was issued with a laptop and hard disks to aid in his daily activities. According to the letter of acceptance of the resignation by the Claimant stated among others that the Respondent would receive his dues after returning all company properties as well as receive his clearance certificate. 65.The Respondent alleged that he adhered to the company’s clearance processes returned all the company property and was issued with a clearance certificate. He received his contractual dues in full thereafter. The Claimant alleged that after the Respondent had cleared and issued with clearance certificate they realized a few days later that the laptop he returned was formatted deleting their confidential and trade related information. 66.The Claimant also alleged that the Respondent failed to return a hard disk which contained crucial information on their trade which if shared to 3rd parties would cause business competition. The Claimant’s witnesses could not tell the size of the hard disk and what information was stored in the said hard disk. The Respondent alleged that when he returned the laptop the IT personnel Denis Kobe formatted his personal information which the Claimant’s witnesses admitted that the Respondent could store personal information. 67.The said laptop was not produced in court or logs showing that the laptop was formatted or there was no information in the laptop at all. The allegations of formatting of the laptop and failure to return the hard disks were brought after the Respondent cleared with the Claimant. The Claimant alleged that the Respondent should have called the said Denis Kobe to support his case but it forgot also to substantiate its allegations that the laptop was formatted. In any case the said Denis Kobe is said to have left the Claimant’s employ hence it was not easy to get him to testify. 68.In addition, the Claimant could not rely on a mere computer and hard disks to safeguard their business operations without a back-up and if at all there was no back up the negligence was on the side of the Claimant not the Respondent because what if the laptop was stolen? In addition, the Claimant’s witnesses confirmed that the Respondent could only be cleared once he returned all the company properties which meant that the Respondent duly cleared, returned the company property, was issued with clearance certificate and his contractual dues paid. 69.To this court the issue of the Respondent not returning the company property was an after-thought which must have been triggered by the Respondent when he joined their competitor. In any case the Claimant was bound to produce a checklist showing what was returned and what was not returned as the custodian of employment records under section 74 of the Employment Act. 70.The Claimant alleged that Respondent would use the confidential information against its business. Whereas the employment contract provided for confidentiality clause under clause 12.2 the Claimant had a duty under section 107 of the evidence Act to prove the nature of confidential information shared and to who and if the same resulted in to loss. The Claimant alleged that the Respondent shared its list of suppliers but during hearing CW1 admitted that their suppliers could easily be found by google. 71.The Claimants witnesses also confirmed that they did not know who was given the information and if it was acted upon, that a vendor called but they could not remember the name of the vendor and what was shared and that they did not know the information shared to third party and they could not tell how much the Claimant lost due such disclosure. In the case of Lipa Later Limited v Wanini (Cause E750 of 2023) [2024] KEELRC 696 (KLR) (19 March 2024) (Ruling) the court held as follows:However, no evidence has been adduced to demonstrate that the Respondent either disclosed confidential information to Craft Solutions Kenya or was actively involved in the conceptualization and development of Spotit. 72.The Claimant in this case did not tender evidence of which confidential information the Respondent shared, was using for his benefits to the detriment of its trade apart from stating that it suffered loss when the Respondent joined its competitor. This court is of the view that the Claimant ought to have specifically pleaded the issue of breach of the contract and attribute the breach to the loss of profits which in any case had not being particularized or pleaded with precision. The court is guided by the court of Appeal in the case of Imanyara & 2 others v Attorney General (Civil Appeal 98 of 2014) [2016] KECA 557 (KLR) (19 May 2016) (Judgment) which relied on the case of Bangue Indosuez vs DJ Lowe and company Ltd [2006] 2KLR 208 where it was stated:“It was trite that special damages must not only be claimed specially but proved strictly for they are not the direct natural or probable consequences of the act complained of and may not be inferred from the act. The degree of certainty and probability of proof required depends on the circumstances and the nature of the acts themselves.” 73.The Respondent alleged that he would come up with creations in his laptop then use the hard disks to transfer the files which were big and could not be transferred via email to the company’s servers for back up. That he would come up with a product and give it to the Claimant for marketing and sales. That the Claimant’s suppliers were well known and it was easy to get them. That it was because of his expertise and experience in the field of production that the Claimant retained him. 74.The court notes that the employment contract only had a confidentiality clause and not non- compete clause. It was clear that the Respondent had been in the field of production since 2003 before the Claimant acquired him and he could use his expertise for his future endeavors. The Respondent’s witness confirmed that the Respondent was using the skills learned in the Claimant company in his next employment. There was nothing barring the Respondent from joining a competitor who in any case he joined two months after resigning from the Claimant. 75.This court in the case of Credit Reference Bureau Holdings Limited v Steven Kunyiha [2017] KEELRC 1418 (KLR) expounded on this issue which it is in agreement as follows:-I could not agree more. Business competition is the essence of free markets. Whereas it would not be right to allow practices that unfairly and unduly open up one’s business secrets and market edge to its rivals, it would on the other hand not be right to encourage a practice where in order to survive the competition, such business shackles its employees from obtaining employment with its competitors. In the digital age, there are in place business processes which can minimize the risk of an employee accessing or inappropriately using employers trade secrets once out of such employment. Experience and expertise garnered from working for a particular employer cannot be reasonably restrained without stunting such employees career. In order to be enforceable such restraint must seek to restrain the use of only that which is uniquely that employer’s secret and not knowledge and skill which can be acquired by learning, experience or development in technology. 16.The applicant before me as rightly submitted by counsel for the defendant has not shown or demonstrated the nature of the secrets or information that the defendant gained access to and the manner in which he is likely to divulge or use the same in his current employment to the detriment of the plaintiff. It is conceded that the plaintiff and Credit Info CRB where the defendant obtained employment are in the same line of business however apart from possible use of experience and skills acquired while working for the plaintiff in his new job, the plaintiff has not alleged or shown that the defendant has in his possession material or classified information which if used at his new work place would prejudice or harm its business interest. Whether the Claimant is entitled to reliefs sought. 76.The prayers for permanent injunctions and loss for breach of contract and detention of hard disk were not properly pleaded by the Claimant with precision. The general damages herein cannot issue without the breach of the contract herein. 77.This court is guided by the case of Giella V Cassman Brown Co. Ltd (1973) EA 358 on the issue of prayer for permanent injunctions as follows:-First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience (E.A Industries Ltd V Trufoods (1972) EA 420).” 78.The Claimant has not met the conditions for award of permanent injunctions as it has not established its case on a balance of probabilities. This court in the case of Lipa Later Limited v Wanini (Cause E750 of 2023) [2024] KEELRC 696 (KLR) (19 March 2024) (Ruling) refused to award the injunctions on similar issues of an employee resigning just like in this case and held as follows: -66.Having failed to establish that it stood to suffer irreparable harm if the injunction sought is not granted the court is not persuaded that the balance of convenience would be in the applicant’s favour.67.For the foregoing reasons, it is the finding of the court that the applicant has failed to demonstrate that the application for a temporary injunction is merited. 79.In conclusion the Claimant’s claim is found without merit and is hereby dismissed with costs to the Respondent. 80.It is so ordered. DATED AT NAIROBI THIS 10TH DAY OF JULY, 2026DELIVERED VIRTUALLY THIS 10TH DAY OF JULY, 2026ABUODHA NELSON JORUMPRESIDING JUDGE-APPEALS DIVISION