IP Case Law library

Facts

Kimari, employed as Marketing Manager under a contract dated 28 May 2008 with a twelve-month post-termination restraint and confidentiality clause, resigned on 2 March 2012. Seven months later LG discovered he had joined Samsung Electronics East Africa Limited, a direct competitor, and sought an injunction to enforce the restraint and protect confidential information.

Issues

Whether the restrictive covenant was enforceable and constitutional under Article 41 of the Constitution of Kenya 2010; whether Kimari had actually accessed genuinely confidential or trade-secret information; and whether enforcement was reasonable.

Rule

Section 2, Contracts of Restraint of Trade Act (Cap 24); Article 41, Constitution of Kenya 2010; the English precedent Esso Petroleum v Harpers Garage [1967].

Analysis

The court found Kimari's duties, market surveys and monthly reports, did not amount to access to trade secrets as defined under the contract, distinguishing general knowledge from proprietary information. It applied a reasonableness test, noting seven months had already elapsed of the twelve-month restraint, leaving only five months, and weighed this against Kenya's high unemployment and the constitutional right to earn a living.

Conclusion

Application for injunctive relief dismissed with costs to Kimari; no prima facie case of confidential-information breach was made out, and enforcing the remainder of the restraint would be unreasonable and contrary to public policy.

Judgement available at kenyalaw.org.