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ELRCDismissedCause No 256 of 2020· [2020] KEELRC 361 (KLR)

Walter Edwin Ogara Odhiambo v SGS Kenya Limited [2020] KEELRC 361 (KLR)

Employment and Labour Relations Court
16 October 2020
2,372 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Claimant, Walter Edwin Ogara Odhiambo, moved the Employment and Labour Relations Court at Nairobi under two applications. The first, dated 22nd June 2020, sought injunctions restraining the Respondent from implementing a notice of intended redundancy dated 17th June 2020, and an order for production of all documents and records relating to redundancy notices of 17th December 2019 and 17th June 2020. The Claimant contended the notices were vague, targeted his removal, and that an earlier exercise had been resolved when a colleague opted for early retirement. The Respondent, through its Human Resources Manager Mrs. Nelly Indimuli, maintained the redundancy process was above board. The second application, dated 2nd July 2020, sought leave to commence contempt proceedings on the basis that the Respondent had contacted the Claimant's witness after service of the suit documents. Relying on Section 40 of the Employment Act, 2007, the court found no evidence of service of the intended redundancy notice on the Labour Officer, but held that the notice given to the Claimant was a draft sent for his input and had not yet been issued to staff to take effect; the injunction application was therefore speculative and devoid of merit, and was dismissed. On contempt, applying Econet Wireless and Trusted Society of Human Rights Alliance, the court held there was no subsistent court order capable of breach, and dismissed that application too, with no orders as to costs. The court nevertheless cautioned the Respondent's Human Resource Manager that interference with witnesses was unlawful. Judgment was delivered virtually at Nairobi on 16th October 2020 by Maureen Onyango, J, pursuant to the COVID-19 directions of the Chief Justice.

Key legal issues

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01

Whether the intended redundancy notice satisfied Section 40(1) of the Employment Act and justified injunctive relief

Holding

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

Reasoning

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.

p. 3
02

Whether leave to commence contempt proceedings could be granted

Holding

No, because no court order existed to be breached; the four elements of civil contempt were not met

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.Dismissal of the Application dated 22nd June, 2020
  2. 2.Dismissal of the Application dated 2nd July, 2020 with no orders as to costs
  3. 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

Authorities

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Legislation

  • Employment Act, 2007Section 40(1)(a)-(g)
  • Employment Act, 2007Section 2
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48

Cases cited (8)

  • Kenya National Private Security Workers Union v G4S Kenya Limited
    (2017) eKLR
  • Gerrishom Muhutsi Obayo v Dsv Air and Sea Limited
    (2018) eKLR
  • Ibrahim Haji Ali v Gulf African Bank (K) Limited & Another
    (2020) eKLR
  • Margaret Mumbi Mwago v Intrahelth International
    (2017) eKLR
  • Veronica Mkiwa Mwalwala v Faiza Bhanji T/A Villa Kalista Enterprises
    (2020) eKLR
  • Thomas De La Rue v David Omutelema
    (2013) eKLR
  • Econet Wireless Kenya Ltd v Minister for information & Communication of Kenya & Another
    [2005] 1 KLR 828
  • Trusted Society of Human Rights Alliance v Cabinet Secretary for Devolution and Planning & 3 Others
    (2017) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Sections 2 and 40 cited); not otherwise expressly stated

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, "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.