Executive Summary

In the recent case of Kendagor v. Dig Deep (Africa) [2025] KEELRC 2753 (KLR), published on 9 October 2025, the Kenyan Employment and Labour Relations Court (ELRC) upheld the termination of an employee, based in part on the finding that the employer was entitled to access the employee's private digital communications. While the employee alleged a violation of her constitutional right to privacy, the court's determination reinforces the principle that workplace-issued electronic systems remain the property of the employer, who retains the right to monitor their use provided this monitoring is lawful and consistent with internal policies.

Detailed Discussion

Background/facts of the case

Kendagor (claimant) was employed as a Project Officer by Dig Deep (respondent). Her employment was terminated following allegations that she had communicated with a former employee under investigation. During the disciplinary process, the respondent allegedly accessed the claimant's private email account and relied on this evidence to justify her dismissal. The claimant challenged the fairness of her termination on various grounds, including that the evidence was obtained in violation of her constitutional right to privacy and that the disciplinary proceedings were procedurally unfair.

Issues for determination

Key issues for determination included:

• Whether the respondent's access to the claimant's private email without consent constituted a breach of her right to privacy
• Whether evidence obtained in this manner could be lawfully relied upon in disciplinary proceedings

Claimant's position

The claimant asserted that the employer's access to her private email was unauthorized and violated her constitutional right to privacy. She also argued that work-related communications should be conducted through official channels, and that incidental personal use of work email was permitted under her contract.

Respondent's position

The respondent contended that the investigation was conducted using company-owned systems and infrastructure, in accordance with known employment terms. The investigation had revealed that the claimant had deleted emails from "sent messages" that she had sent to her personal email account. Citing clauses 30.16 and 30.18 of the Staff Handbook, the respondent emphasized that personal use of its systems was subject to monitoring and that disciplinary action could follow breaches. The respondent maintained that the disciplinary process was necessary to protect organizational interests and uphold workplace policies.

Court's analysis and determination

The court reaffirmed that electronic communication systems and equipment issued at the workplace remain the property of the employer. It found that the respondent's staff handbook provided a legitimate basis for digital monitoring and cited established jurisprudence supporting employer access to workplace emails and devices. The court also addressed the procedural aspects of the disciplinary process, emphasizing the need for fairness and transparency.

Key takeaways

Based on the court's determination, employers should consider taking the following steps to ensure compliance with applicable law:

• Establish and communicate clear policies on digital monitoring, including the scope and conditions under which employee communications may be accessed
• Limit accessing private communications to instances in which consent is obtained or such access is expressly permitted by contract or policy
• Ensure that employer monitoring practices comply with the Data Protection Act and constitutional privacy protections, and are conducted in a lawful, necessary and proportionate manner

While employees retain constitutional privacy rights, these rights may be limited in workplaces in which monitoring is lawfully conducted under clear policies. Depending on the circumstances, employees are not entitled to assume absolute privacy when using employer-issued devices or systems.

Conclusion

This decision serves as a timely reminder that employer oversight in the digital workplace must be carefully balanced with respect for employee privacy. Organizations should review their digital monitoring frameworks, update internal policies and ensure alignment with legal standards to comply with applicable law promote a fair and transparent working environment.