Edwin Onyono & Sherwim Njoroge v Judicial Service Commission (Cause 1252 of 2018) [2019] KEELRC 2478 (KLR)
The bottom line
#Kenya's Employment Court stopped the Judicial Service Commission from withdrawing signed job contracts, confirming employers cannot unilaterally change accepted employment terms.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicants established a prima facie case for interlocutory injunction
They did; the accepted letter of offer dated 22nd June 2018 constituted a fresh, binding contract which the Respondent purported to withdraw without justification.
Applying Giella v Cassman Brown, the court found the Applicants had signed and accepted a fresh one-year contract commencing 1st July 2018. The Respondent's claim of an error was unsupported by any consideration of Section 10(5) of the Employment Act, which requires consultation and written notice before varying contractual terms. The prima facie case threshold was therefore met.
Whether the Respondent would suffer irreparable harm if the injunction issued
No irreparable harm was demonstrated since the Applicants would continue serving the Respondent.
The court noted that the Respondent did not demonstrate any irreparable injury, as the Applicants remained in the Respondent's service under the existing contract. The second Giella condition therefore favoured the Applicants, and the application was merited.
Whether variation of the accepted contract complied with Section 10(5) of the Employment Act
It did not; there was no evidence the Respondent considered Section 10(5) in changing the contract terms.
Section 10(5) requires an employer, where stipulated matters change, to revise the contract in consultation with the employee and notify the change in writing. The Respondent's unilateral substitution of the Law Clerks contract with a Legal Researchers contract at reduced pay, without consultation or explanation, fell foul of this provision.
Legal principles established
#- Where a term of an employment contract changes, the employer must, in consultation with the employee, revise the contract and notify the employee of the change in writing.
- A fresh contract of employment, offered and accepted with all its terms, is binding and cannot be unilaterally withdrawn without regard to the Employment Act.
Court orders
#- 1.An order in terms of prayer 3 of the Notice of Motion restraining the Respondent from altering, amending, withdrawing, varying, terminating or otherwise interfering with the accepted contract of employment contained in the letter of offer dated 22nd June 2018, pending the hearing and determination of the Claim
- 2.Costs in the cause
- Jurisdiction invoked
- Section 17 of the Employment and Labour Relations Court Act, 2014; Articles 41 and 47 of the Constitution of Kenya; Sections 41, 43 and 45 of the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Nyaga v Barclays Bank (Cause 1455 of 2018) [2024] KEELRC 1220 (KLR)[2024] KEELRC 1220 (KLR)25 Jan 2024
- Nyaga v Barclays Bank (Cause 1455 of 2018) [2024] KEELRC 1220 (KLR)[2024] KEELRC 1220 (KLR)25 Jan 2024
Cite this brief
#Cite this brief
Caselaw, "Edwin Onyono & Sherwim Njoroge v Judicial Service Commission (Cause 1252 of 2018) [2019] KEELRC 2478 (KLR)", Case Analysis (2019). Cause No 1252 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2478/eng@2019-01-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.