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ELRCDismissedPetition No. 137 of 2018· [2019] KEELRC 1057 (KLR)

Thomas Ombasa Soigwa & another v Export Processing Zones Authority [2019] KEELRC 1057 (KLR)

Employment and Labour Relations Court
17 July 2019
1,019 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Petitioners, employees of the Export Processing Zones Authority, challenged their being sent on 90 days' compulsory leave on 22 November 2018 to facilitate investigations into alleged procurement irregularities, contending that the decision violated contractual provisions and their constitutional rights. Together with the Petition filed on 18 December 2018 they sought conservatory orders, and on 19 December 2018 Wasilwa J certified the application urgent, directed inter partes hearing, and ordered that status quo be maintained. On 18 June 2019 the Petitioners filed an application alleging that two named officers of the Respondent had violated the status quo order by commencing disciplinary action against them on 29 May 2019. The Respondent opposed through grounds of opposition and replying affidavits, also arguing that the status quo order had lapsed for want of extension after 21 January 2019. Radido J held that status quo preserves the situation existing when the order is made; since the Petitioners were already on compulsory leave, the order did not stay or reverse that decision. The 90-day compulsory leave expired on or around 21 February 2019 without extension, dissolving the factual situation the order preserved and rendering the order superfluous. The Petition challenged only the compulsory leave decision, not anticipated disciplinary action, and there was no express order restraining disciplinary proceedings. Accordingly, the Court found no wilful disobedience and rejected the lapse argument. The application was dismissed with no order as to costs, delivered on 17 July 2019 in Nairobi.

Key legal issues

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01

Scope and duration of a status quo order

Holding

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

Reasoning

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.

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02

Whether commencing disciplinary action amounted to contempt

Holding

No contempt was established; there was no express order restraining disciplinary action and the Petition challenged only the compulsory leave decision

Reasoning

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.

p. 2
03

Respondent's argument that the order lapsed for want of extension

Holding

Rejected; the order was not time-bound and did not lapse merely for lack of extension

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The application filed in Court on 10 July 2019 was dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Constitution of KenyaArticles 27, 41 and 47
  • Employment Act2007
  • Export Processing Zones ActCap 517 Laws of Kenya
  • Fair Administrative Action Act2015

Cases cited (1)

  • Kiru Tea Factory Company Ltd v Stephen Maina Githiga & 14 Ors
    (2019) eKLR
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.