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ELRCPartially AllowedCause No 1252 of 2018· [2019] KEELRC 2478 (KLR)

Edwin Onyono & Sherwim Njoroge v Judicial Service Commission (Cause 1252 of 2018) [2019] KEELRC 2478 (KLR)

Employment and Labour Relations Court
22 January 2019
2,093 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 stopped the Judicial Service Commission from withdrawing signed job contracts, confirming employers cannot unilaterally change accepted employment terms.

What this practically means

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Executive summary

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Edwin Onyono and Sherwin Njoroge, legal researchers seconded to the Court of Appeal, moved the Employment and Labour Relations Court by Notice of Motion dated 26th July 2018 seeking to restrain the Judicial Service Commission from altering, withdrawing, varying or terminating an accepted contract of employment contained in a letter of offer dated 22nd June 2018, which engaged them as Law Clerks for one year at Kshs. 190,000 per month. The Respondent contended that there was no position of Law Clerk in the Court of Appeal, that the offer was issued in error, and that its letter of 9th July 2018 merely corrected that error by restoring the correct position of Legal Researcher at reduced pay. The Applicants invoked Giella v Cassman Brown, Section 10(5) of the Employment Act, equal pay for work of equal value under Section 5(5), and fair labour practices under Article 41 of the Constitution; the Respondent argued mistake in contract and absence of legitimate expectation. Applying the Giella criteria, the court found that the 22nd June 2018 letter was a fresh contract, signed and accepted, not a renewal, and that the Respondent had not complied with Section 10(5) of the Employment Act, which requires consultation and written notice when contractual terms change. The Respondent also failed to show irreparable harm. The court found a prima facie case and allowed the application in terms of prayer 3, preserving the accepted contract pending trial, with costs in the cause. Judgment was delivered by Hellen Wasilwa, Judge, on 22nd January 2019.

Key legal issues

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01

Whether the Applicants established a prima facie case for interlocutory injunction

Holding

They did; the accepted letter of offer dated 22nd June 2018 constituted a fresh, binding contract which the Respondent purported to withdraw without justification.

Reasoning

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.

p. 5
02

Whether the Respondent would suffer irreparable harm if the injunction issued

Holding

No irreparable harm was demonstrated since the Applicants would continue serving the Respondent.

Reasoning

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.

p. 5
03

Whether variation of the accepted contract complied with Section 10(5) of the Employment Act

Holding

It did not; there was no evidence the Respondent considered Section 10(5) in changing the contract terms.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 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. 2.Costs in the cause

Authorities

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Legislation

  • Employment and Labour Relations Court ActSection 17
  • Employment ActSections 41, 43, 45, 10(5), 5(5)
  • Constitution of KenyaArticles 41, 47

Cases cited (8)

  • Giella vs Cassman Brown and Company Limited
    (1975) E.A 358
  • Mrao Ltd Versus First American Bank Limited & 2 Others
  • Esther Mbinya Musau Versus National Bank of Kenya Limited
    (2015) eKLR
  • Elizabeth Washeke & 62 Others Versus Airtel Networks Limited & Another
  • Rejab Barasa & 4 Others Versus Kenya Meat Commission
    (2016) eKLR
  • Nebart Munyi Versus Nicholas Muriithi Zakaria
    (2015) eKLR
  • Communication Commission of Kenya & 5 Others Versus Royal Media Services & 5 Others
  • Sethi Auto Service Stattion & Another Versus Delhi Development Authority & Others
    (2009) 1SCC 180
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "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.