Walter Edwin Ogara Odhiambo v SGS Kenya Limited [2020] KEELRC 361 (KLR)
The bottom line
#A Kenyan employee who challenged a redundancy lost because it was still a draft, and contempt failed since no court order existed yet.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended redundancy notice satisfied Section 40(1) of the Employment Act and justified injunctive relief
The application failed because the notice given to the Claimant was a draft for his input and there was no evidence of service on the Labour Officer, but since the notice had not yet taken effect the application was speculative rather than merited
The court examined the email from the Human Resource Manager forwarding the intended notice and found it was a draft sent for the Claimant's input before being rolled out to staff. The Claimant declined to give input citing lack of specifics and lack of consultation. On perusal of the record, no evidence of service of any notice of intended redundancy upon the Labour Officer was found, as required by Section 40(1)(a) and (b). Because the notice was not yet issued to all staff to take effect, an injunction would be premature.
Whether leave to commence contempt proceedings could be granted
No, because no court order existed to be breached; the four elements of civil contempt were not met
Relying on Black's Law Dictionary and Econet Wireless Kenya Ltd, the court restated that every person against whom a court order is made is under an unqualified obligation to obey it. Citing Trusted Society of Human Rights Alliance, the applicant must prove clear and unambiguous orders, knowledge or notice, breach, and deliberate conduct, with proof of service of the order. In this case no order was in place, so contempt could not lie.
Legal principles established
#- An employer shall not terminate a contract of service on account of redundancy unless the conditions in Section 40(1)(a)-(g) of the Employment Act are complied with, including service of notice on the labour officer
- Contempt cannot lie in respect of a non-existent order; the applicant must prove the terms of a clear order, knowledge of it, breach, and deliberateness
Court orders
#- 1.Dismissal of the Application dated 22nd June, 2020
- 2.Dismissal of the Application dated 2nd July, 2020 with no orders as to costs
- 3.Notification to the Respondent's Human Resource Manager, Mrs. Nelly Indimuli, that interference with witnesses in the manner stated by the Applicant is unlawful
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Sections 2 and 40 cited); not otherwise expressly stated
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Walter Edwin Ogara Odhiambo v SGS Kenya Limited [2020] KEELRC 361 (KLR)", Case Analysis (2020). Cause No 256 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/361/eng@2020-10-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.