Mabel Kibore v National Oil Corporation of Kenya [2018] KEELRC 2419 (KLR)
The bottom line
#Kenya's Employment Court confirmed that reinstating an employee means paying them their salary for the entire period they were out of the job.
What this practically means
#Executive summary
#Key legal issues
#Whether a reinstatement order carries with it payment of salaries for the intervening period
Yes - reinstatement under section 49(3)(a) of the Employment Act treats the employment as never having been terminated, so back pay accrues unless the court orders otherwise
The court examined section 49(3)(a) of the Employment Act, 2007 read with section 50, and undertook a textual interpretation. It held that reinstatement contemplates the employment relationship as continuous, meaning the employee is to be treated in all respects as if the employment had never been terminated. Accordingly, back salaries accrue unless the court expressly orders otherwise. The orders of 8 November 2017 were silent on salary, so the default rule applied, and the Respondent was well advised to pay the salaries for August to December 2017 unless the Court of Appeal stayed those orders.
Whether contempt proceedings should be commenced against the Respondent's CEO
No - with the clarification on back pay and the Respondent's expressed intention to comply, issuing the 30 days' notice was unnecessary and not legally prudent
The court noted the record contained an order of reinstatement that was silent on salary for the intervening period. Having clarified that back pay accrues on reinstatement, and considering the Respondent had expressed an intention to comply, the court held it would be unnecessary and legally prudent not to issue the notice to show cause. The contempt application was therefore declined, with each party bearing their own costs.
Legal principles established
#- Reinstatement under section 49(3)(a) of the Employment Act implies the employment relationship is treated as never having been terminated, so back pay accrues to the reinstated employee unless the court orders otherwise.
Court orders
#- 1.The Claimant's application dated 18 December 2017 seeking leave to commence contempt proceedings is declined
- 2.Each party to bear their own costs of the application
- 3.The Court's clarification that reinstatement carries back pay, and the Respondent is well advised to pay the Claimant salaries for August to December 2017 unless the Court of Appeal stays the orders of 8 November 2017
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 49(3)(a) and 50 referred to); interlocutory application in the pending cause
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Paul Magoto Nyagari v First Community Bank Limited [2022] KEELRC 318 (KLR)[2022] KEELRC 318 (KLR)16 Mar 2022
Cite this brief
#Cite this brief
Caselaw, "Mabel Kibore v National Oil Corporation of Kenya [2018] KEELRC 2419 (KLR)", Case Analysis (2018). Cause No. 1993 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2419/eng@2018-03-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.