Antoinette Bonita Kamau & another v Energy Regulatory Commission [2019] KEELRC 992 (KLR)
The bottom line
#Kenya's Employment Court ruled the Energy Regulatory Commission's unconsulted demotion of two employees unconstitutional, awarding them six months' pay and an exit package.
What this practically means
#Executive summary
#Key legal issues
#Whether the re-designation and re-deployment of the Petitioners was fair and lawful
The re-designation and re-deployment was unlawful, unconstitutional and unfair, breaching Articles 41(1), 47, 236 of the Constitution and Section 10(5) of the Employment Act
The court found the re-designation was actually driven by allegations of poor performance, not the claimed government directive on regional offices. The Petitioners were not informed of the reasons or heard before the decision, were not consulted on changes to their terms including conversion to fixed-term contracts, and were moved to a lower job grade reporting to an officer of the same grade. The appeals were never heard and the letters showed pre-meditation.
Whether the Cited Parties were in contempt of the status quo orders of 22nd January 2019
Contempt not proved to the required standard; application dismissed
The court applied the North Tetu elements and the Gatharia Mutitikha standard of proof, higher than balance of probabilities but below criminal standard. The evidence - an email suspending trainings, blocked emails, and a recruitment email - was insufficient to establish deliberate breach with intent to disobey the orders, and some of the 1st Petitioner's complaints predated the orders.
Legal principles established
#- Where a change affects matters stipulated in an employment contract, the employer must consult the employee, revise the contract and notify the change in writing
- Demotion or alteration of employment terms requires the affected employee to be informed of the reasons and given an opportunity to be heard before the decision is taken
- Elements of civil contempt: clear unambiguous order, knowledge or notice, breach, and deliberate conduct, proved to a standard higher than balance of probabilities
Court orders
#- 1.A declaration that the Respondent's decision was contrary to Articles 10, 27, 28, 41, 47, 50, 73 and 236 of the Constitution of Kenya 2010
- 2.The Petitioners to be allowed to exit the Respondent under option 2: Exit from Commission, Transition Option Selection
- 3.General damages in the form of compensation equivalent to six (6) months' gross pay for the constitutional violations
- 4.The application to cite Pavel Robert Oimeke and James Muithya Kilonzo for contempt dismissed
- 5.Costs of the Petition awarded to the Petitioners
- 6.Interest to accrue from date of judgment
- Jurisdiction invoked
- Constitution of Kenya 2010 (petition alleging violation of Articles 10, 27, 28, 41, 47, 50, 73 and 236)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Sarah Njuhi Mwenda v Head of Public Service & 4 others [2022] KEELRC 1062 (KLR)[2022] KEELRC 1062 (KLR)20 Jan 2022applied
- Eustace Muriithi Njeru v Energy and Petroleum Regulatory Authority [2020] KEELRC 655 (KLR)[2020] KEELRC 655 (KLR)17 Jul 2020applied
- Kenya Export Floriculture, Horticulture and Allied Workers Union v Vegro (K) Limited [2020] KEELRC 1822 (KLR)[2020] KEELRC 1822 (KLR)27 Jan 2020
Cite this brief
#Cite this brief
Caselaw, "Antoinette Bonita Kamau & another v Energy Regulatory Commission [2019] KEELRC 992 (KLR)", Case Analysis (2019). Petition No 21 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/992/eng@2019-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.