Clyde Alielo Khayiya & 27 others v Board of Governors Ngara Girls High School & another [2014] KEELRC 565 (KLR)
The bottom line
#Kenya's Industrial Court found a school in contempt for firing five employees while a status quo court order was in force, ordering reinstatement and back pay.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination of 5 Claimants' contracts during the pendency of the main Claim breached the orders of 8th and 18th November 2011
Yes, the Respondents were in contempt; the orders required maintenance of the status quo pending the outcome of the proceedings.
The orders required the parties to retain the position prevailing when the orders issued, pending outcome of the proceedings. The School Principal testified she was aware of the orders yet terminated the contracts without seeking the Court's guidance or consulting the Attorney-General. Evidence showed action was taken against the 5 Claimants for refusing to withdraw their Claim. Contempt was therefore established.
Whether the orders of 18th November 2011 were valid and binding
The orders were valid; once the Attorney-General appeared and sought time, the orders ceased to be ex parte and could not be challenged under Rule 16(7)(b).
The Attorney-General requested 30 days to file a Replying Affidavit on 18th November 2011, and State Counsel later indicated no objection to the extension of the orders. The orders thus became orders issued in the presence of both parties. The set-aside application came only on 24th October 2013, long after the School and Board had acted, without consulting the Attorney-General.
The appropriate consequences of the contempt
Reinstatement, payment of accrued salaries and allowances, deferral of fresh disciplinary processes until the main Claim is determined, and a severe warning of custodial sentences for non-compliance.
The Court restored the 5 Claimants to their pre-25th January 2013 positions and ordered payment of all salaries and allowances from that date within 14 days. Fresh disciplinary processes were permitted only after the main Claim was heard and determined. A stern warning was issued that non-compliance or further violations would attract custodial sentences against each and every contemnor.
Legal principles established
#- Interim orders that cease to be ex parte, having been issued in the presence of both parties, bind the parties and cannot be challenged under Rule 16(7)(b) of the Industrial Court (Procedure) Rules 2010
- Taking adverse action against employees in violation of a subsisting status quo order constitutes contempt of court even where the party did not seek clarification from the Court
Court orders
#- 1.A declaration that the Respondents acted in contempt of the Court by terminating the 5 Claimants' contracts of employment before the main dispute is fully heard and determined
- 2.The Respondents shall forthwith reinstate the 5 Claimants to the positions they held immediately before the 25th January 2013
- 3.The Respondents shall pay to the 5 Claimants all their salaries and allowances dating back from 25th January 2013, within 14 days of delivery of the Ruling
- 4.The Respondents may undertake fresh disciplinary processes against the 5 Claimants only after the Main Claim is heard in full and determined
- 5.The Respondents severely warned that failure to comply or further violations shall attract custodial sentences against each and every contemnor
- 6.The Parties to schedule the Respondents' case for hearing on a suitable date at the Registry
- Jurisdiction invoked
- Original employment dispute jurisdiction of the Industrial Court under the Constitution of Kenya 2010 and the Industrial Court (Procedure) Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Clyde Alielo Khayiya & 27 others v Board of Governors Ngara Girls High School & another [2014] KEELRC 565 (KLR)", Case Analysis (2014). Not stated in judgment (Claim filed 29th September 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/565/eng@2014-03-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.