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ELRCPartially AllowedNot stated in judgment (Claim filed 29th September 2011)· [2014] KEELRC 565 (KLR)

Clyde Alielo Khayiya & 27 others v Board of Governors Ngara Girls High School & another [2014] KEELRC 565 (KLR)

Industrial Court of Kenya
28 March 2014
1,566 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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Twenty-eight Claimants employed at Katuluni Secondary School filed a claim on 29th September 2011 seeking review of terms of service, salary increments from 2003, annual leave travelling and commuter allowances, protective clothing, and freedom to join a trade union. On 8th and 18th November 2011 the Court issued interim orders restraining victimisation and requiring maintenance of the status quo pending the outcome of the proceedings; the 1st Claimant was to report to duty and a salary deduction to the 7th Claimant was to be refunded. The Claimants closed their case on 7th February 2013. When the Respondents' case was scheduled for 18th March 2013, the Court learned the Respondents had terminated the contracts of 5 Claimants - Peter Gitari, Faith Kitonyo, Sammy Leparachao, Josphat Mumo and George Magero - following warning letters of November 2012 and a Board resolution communicated on 11th February 2013. The Court heard the School Principal, Ms. Asunta Ndunge Munyasia, over several dates in 2013 and received submissions on 14th February 2014. It found the orders valid and inter partes, that the Principal was aware of them and acted without consulting the Court or the Attorney-General, and that the terminations were ostensibly for refusing to withdraw the Claim. The Respondents were held in contempt, ordered to reinstate the 5 Claimants, pay their salaries and allowances from 25th January 2013 within 14 days, defer fresh disciplinary processes until the main Claim is determined, and warned that non-compliance would attract custodial sentences. The main Claim remains pending hearing of the Respondents' case.

Key legal issues

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01

Whether the termination of 5 Claimants' contracts during the pendency of the main Claim breached the orders of 8th and 18th November 2011

Holding

Yes, the Respondents were in contempt; the orders required maintenance of the status quo pending the outcome of the proceedings.

Reasoning

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.

p. 4
02

Whether the orders of 18th November 2011 were valid and binding

Holding

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).

Reasoning

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.

p. 4
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The appropriate consequences of the contempt

Holding

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.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 2.The Respondents shall forthwith reinstate the 5 Claimants to the positions they held immediately before the 25th January 2013
  3. 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. 4.The Respondents may undertake fresh disciplinary processes against the 5 Claimants only after the Main Claim is heard in full and determined
  5. 5.The Respondents severely warned that failure to comply or further violations shall attract custodial sentences against each and every contemnor
  6. 6.The Parties to schedule the Respondents' case for hearing on a suitable date at the Registry

Authorities

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Legislation

  • Constitution of Kenya2010
  • Industrial Court (Procedure) RulesRule 16(7)(b)
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.