Thomas Ombasa Soigwa & another v Export Processing Zones Authority [2019] KEELRC 1057 (KLR)
The bottom line
#The Employment Court ruled that a status quo order only freezes the situation as it exists when issued and does not reverse an employer's earlier decision.
What this practically means
#Executive summary
#Key legal issues
#Scope and duration of a status quo order
The status quo order of 19 December 2018 preserved the situation existing when it was made - the Petitioners already serving compulsory leave - and did not stay or reverse the compulsory leave decision
Status quo means the situation that currently exists. When the Petitioners moved the Court they were already on compulsory leave imposed on 22 November 2018. The order therefore maintained the compulsory leave rather than restoring a status quo ante. Once the 90-day compulsory leave - a time-bound measure to facilitate investigations - expired on or around 21 February 2019 without extension, the factual situation the order preserved dissipated and the order became superfluous.
Whether commencing disciplinary action amounted to contempt
No contempt was established; there was no express order restraining disciplinary action and the Petition challenged only the compulsory leave decision
The Petition's pleaded facts did not extend beyond the compulsory leave decision; there was no substantial challenge to anticipated disciplinary action. Investigations and disciplinary processes serve different purposes. With no order restraining disciplinary proceedings and the preserved factual situation dissipated, commencing disciplinary action in May 2019 was not a violation of the order, hence no wilful disobedience.
Respondent's argument that the order lapsed for want of extension
Rejected; the order was not time-bound and did not lapse merely for lack of extension
The Respondent argued the status quo order lapsed after 21 January 2019 because the Court failed to extend it. The Court held that since the order did not state when it would lapse when issued, failure to extend it at subsequent appearances did not invalidate it. The dismissal instead rested on the dissipation of the underlying factual situation.
Legal principles established
#- A status quo order preserves the situation existing at the time it is issued; it does not reverse or stay the underlying decision nor restore the position before it
- A status quo order cannot survive beyond the factual situation it was meant to preserve; where the preserved state is time-bound, the order becomes superfluous once it dissipates
- An unextended order not expressed to be time-bound does not lapse merely because it was not extended at subsequent appearances
Court orders
#- 1.The application filed in Court on 10 July 2019 was dismissed
- 2.No order as to costs
- Jurisdiction invoked
- Articles 27, 41 and 47 of the Constitution; Employment Act, 2007; Fair Administrative Action Act, 2015 (rights and employment jurisdiction of the ELRC)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Thomas Ombasa Soigwa & another v Export Processing Zones Authority [2019] KEELRC 1057 (KLR)", Case Analysis (2019). Petition No. 137 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1057/eng@2019-07-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.