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ELRCPartially AllowedPetition No 21 of 2019· [2019] KEELRC 992 (KLR)

Antoinette Bonita Kamau & another v Energy Regulatory Commission [2019] KEELRC 992 (KLR)

Employment and Labour Relations Court
26 July 2019
3,795 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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Two employees of the Energy Regulatory Commission petitioned the Employment and Labour Relations Court challenging their re-designation as Principal Surveillance & Enforcement Officers and re-deployment to Nyeri and Nyanza by letters dated 20th December 2018, which they contended amounted to demotion and violated Articles 10, 27, 28, 41, 47, 50, 73 and 236 of the Constitution. The Respondent justified the moves as capacity building for a new Enforcement and Consumer Protection Directorate created pursuant to a national government directive on regional offices, maintaining that grade, salary and benefits were unchanged and due process was followed. The court found, however, that the true reason was the Petitioners' purported poor performance; that they were neither informed of the reasons nor heard before the decision; that their terms were altered, including conversion to fixed-term contracts, without consultation contrary to Section 10(5) of the Employment Act; and that they were moved to a lower grade reporting to an officer of the same grade. Their appeals were never heard. The court declared the decision contrary to Articles 10, 27, 28, 41, 47, 50, 73 and 236, allowed the Petitioners to exit under option 2, and awarded general damages equivalent to six months' gross pay, with costs and interest from judgment. A related contempt application against the Director General and another officer, alleging breach of status quo orders of 22nd January 2019, was dismissed for failure to prove contempt to the required standard.

Key legal issues

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01

Whether the re-designation and re-deployment of the Petitioners was fair and lawful

Holding

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

Reasoning

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.

p. 5
02

Whether the Cited Parties were in contempt of the status quo orders of 22nd January 2019

Holding

Contempt not proved to the required standard; application dismissed

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 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. 2.The Petitioners to be allowed to exit the Respondent under option 2: Exit from Commission, Transition Option Selection
  3. 3.General damages in the form of compensation equivalent to six (6) months' gross pay for the constitutional violations
  4. 4.The application to cite Pavel Robert Oimeke and James Muithya Kilonzo for contempt dismissed
  5. 5.Costs of the Petition awarded to the Petitioners
  6. 6.Interest to accrue from date of judgment

Authorities

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Legislation

  • Energy ActNot specified
  • Employment ActSection 10(5)
  • Constitution of Kenya 2010Articles 10, 20, 27, 28, 41, 47, 50, 73, 236
  • Human Resource Policies and Procedures Manual (Energy Regulatory Commission)Section 2.22

Cases cited (8)

  • Teacher Service Commission vs. Kenya National Union of Teachers & 2 Others
    [2013] eKLR
  • Shimmers Plaza Limited vs. National Bank of Kenya Limited
    [2015] eKLR
  • Africa Management Communication International Limited vs. Joseph Mathenge Mugi & Another
    [2013] eKLR
  • Christine Wangari Chege vs. Elizabeth Wanjiru Evans & 11 Others
    [2014] eKLR
  • Ronald Kampa Lugaba -V- Kenol Kobil Limited
    [2016] eKLR
  • North Tetu Farmers Company Limited -V- Joseph Nderitu Wanjohi
    [2016] eKLR
  • Gatharia K. Mutikika vs Baharini Farm Ltd
  • Peter K. Yego & Others vs Pauline Nekesa Kode
Jurisdiction invoked
Constitution of Kenya 2010 (petition alleging violation of Articles 10, 27, 28, 41, 47, 50, 73 and 236)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.