Nicholas Bishop v AAR Healthcare Holdings Limited [2017] KEELRC 1842 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether an employment relationship existed between the Applicant and the Respondent
Yes – the appointment letter dated 11.1.2015 signed by the Respondent's Group Managing Director, and a staff memo dated 20.3.2015, establish an employment relationship between the Applicant and AAR Healthcare Holdings Limited.
The court read the appointment letter, which appointed the Claimant Group Chief Finance Officer of AAR reporting to the General Managing Director, with a fixed term running to 28.2.2018 and termination clauses binding AAR directly. The fact that the contract was to be administered through AMSCO and that AMSCO paid him did not displace the employment relationship with the Respondent.
Whether the Respondents and their Directors were guilty of contempt of the orders of 22.6.2016
No – although the Respondents breached the terms of the contract/conservatory orders by procuring payment of notice pay and failing to pay salaries, the order had only been served on 13.7.2016, after the acts complained of, so the breach was not deliberate contempt.
The court accepted service on the Respondents but found that the actual date of service (13.7.2016) fell after the payment of EUR 26,228.19 on 4.7.2016 and after the acts said to alter the employment terms. Absent service before the breach, the court declined to punish for contempt, leaving the alleged breaches to be canvassed in the main claim.
What orders should issue in the circumstances
The contempt application was refused; the Applicant was left to pursue the alleged breaches in the main claim.
Since the ingredients of deliberate disobedience of a served order were not established, committal, fines and purging orders were inappropriate. The court preserved the Applicant's remedies on the contract for the substantive petition.
Legal principles established
#- A party cannot be held guilty of contempt of a court order that had not been served on it at the time of the alleged breach.
- An appointment letter signed by the company's Group Managing Director and communicated to staff evidences an employment relationship notwithstanding third-party payroll arrangements.
Court orders
#- 1.Application for contempt dismissed – the Respondents and their Directors were not found guilty of contempt of court.
- 2.Leave granted to the Applicant to articulate the alleged breaches of contract in the main claim.
- 3.Service of the application on the Directors through Mboya Wangong'u & Waiyaki Advocates – overtaken by dismissal of the application.
- Jurisdiction invoked
- Section 5(1) of the Judicature Act (Cap 8) incorporating Order 52 Rule 3 of the Rules of the Supreme Court of England and Wales as modified by the Civil Procedure (Amendment No. 2) Rules, 2012; Articles 22 and 162(3) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nicholas Bishop v AAR Healthcare Holdings Limited [2017] KEELRC 1842 (KLR)", Case Analysis (2017). Application dated 20.7.2016 in the Petition (ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1842/eng@2017-01-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.