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ELRCPartially AllowedNot stated in the judgment (Notice of Motion filed 16/6/2020 in an ELRC Petition)· [2020] KEELRC 475 (KLR)

Catherine Nyakoboke v Evengeline Njoka & 3 others [2020] KEELRC 475 (KLR)

Employment and Labour Relations Court of Kenya
17 September 2020
3,187 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court found an employer in contempt for dismissing a worker despite a court order and reinstated her.

What this practically means

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Executive summary

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This is a first-instance ruling of the Employment and Labour Relations Court at Nairobi by Lady Justice Hellen Wasilwa on a Notice of Motion filed on 16/6/2020 by Catherine Nyakoboke Nyang'au, the Petitioner/Applicant. She sought orders that the 1st and 2nd Respondents be cited for contempt of an ex-parte injunction issued on 26/5/2020 restraining the termination of her services, and that the summary dismissal letter of 12/6/2020 be suspended or set aside. The Respondents opposed, arguing that the resolution to suspend the Applicant predated service of the order, that the ex-parte order lapsed on 10/6/2020 by operation of Rule 17(4) of the ELRC (Procedure) Rules, 2016 and Order 40 Rule 4(2) of the Civil Procedure Rules, that the order did not bar disciplinary proceedings, and that the Applicant failed to prove the elements of contempt to the requisite standard. The court framed three issues: service or knowledge of the order, whether contempt was committed, and remedies. It found that the Respondents had knowledge of the order, drawing on Basil Criticos v Attorney General, since they filed appearances and an application to set it aside. It held the orders remained in force until further orders and had not been varied, and that the disciplinary process and summary dismissal of 12/6/2020 constituted contempt. The court found the Respondents guilty of contempt, suspended the dismissal decision, reinstated the Applicant pending further orders, and awarded the costs of the Petition to the Applicant.

Key legal issues

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01

Service of, or knowledge of, the court order of 26/5/2020

Holding

The Respondents had knowledge of the order; personal service was not strictly necessary.

Reasoning

The court inferred knowledge from the Respondents' conduct: they filed a notice of appearance, responded to the application and filed their own application on 2/6/2020 seeking to set aside the ex-parte orders, showing full awareness. This aligns with the principle in Basil Criticos v Attorney General that knowledge supersedes personal service.

p. 5
02

Whether the Respondents acted in contempt of the order

Holding

The Respondents committed contempt by subjecting the Applicant to a disciplinary process and summarily dismissing her while the orders stood.

Reasoning

The order injuncted termination of the Applicant's services until further orders. The court held the ex-parte orders remained in force and were not varied. The dismissal of 12/6/2020 was not denied by the Respondents, and the court found them guilty of contempt.

p. 5
03

Whether the ex-parte order lapsed under Rule 17(4) ELRC Rules and Order 40 Rule 4(2) CPR after 14 days

Holding

The order did not lapse because the court had directed it to remain in force until further orders of the Court.

Reasoning

The Respondents argued the order lapsed on 10/6/2020 by operation of law. The court rejected this, holding that the interim orders were extended on 11/6/2020, and in any event no order varying the ex-parte orders was issued, so they remained in force.

p. 5
04

Appropriate remedies for contempt

Holding

Rectification of the disobedience in addition to punishment: suspension of the summary dismissal and reinstatement of the Applicant.

Reasoning

The court held that beyond punishing the contemnors, the action taken against the court order must be rectified. It therefore suspended the dismissal letter of 12/6/2020 and reinstated the Applicant pending further orders.

p. 5

Legal principles established

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  • Knowledge of a court order supersedes the strict requirement of personal service in contempt proceedings.
  • Where ex-parte orders were to remain in force until further orders of the Court, their continued validity is not defeated merely because they were not formally extended at an inter-partes hearing.

Court orders

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  1. 1.The prayer to suspend the impugned decision contained in the letter of 12/6/2020 is suspended
  2. 2.The Applicant is reinstated to her employment pending any further orders from the Court
  3. 3.The Respondents will bear the costs of the Petition

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 17(4)
  • Civil Procedure RulesOrder 40 Rule 4(2)
  • Civil Procedure RulesOrder 40 Rules 4 and 6
  • Civil Procedure ActSection 63
  • Employment Act, 2007Not specified (fundamental rights provisions invoked)

Cases cited (15)

  • Nairobi Hospice v Kenya Commercial Bank Limited & 2 Others
    [2017] eKLR
  • Maxam Limited & 2 Others v Heineken East Africa Import Co. Ltd & 2 Others
    [2017] eKLR
  • Teachers Service Commission v Kenya National Union of Teachers & 2 Others
    [2013] eKLR
  • Winnie Muthoni Mburu & 25 Others v Nairobi City Council & 7 Others
    [2016] eKLR
  • Econet Wireless Kenya Limited v Minister for Information & Communication of Kenya & Another
  • NSSF v John Ochieng Opiyo
    [2006] eKLR
  • Wambui Kiragu (suing as administrator of the Estate of the Late Samuel Kiragu Michuki) v Governor Nairobi City County
    [2018] eKLR
  • Daniel Odhiambo Okaka v Samuel Udali Mtange & another
    [2018] eKLR
  • Geoffrey Chege Kirundi & 2 Others v Stephen Maina Githiga & 3 Others
    [2019] eKLR
  • Mrs. Rahab Wanjiru Evans v Esso (K) Ltd
    (1995-1998) EA 332
  • Omega Enterprises (Kenya) Limited v Kenya Tourist Development Corporation & 2 Others
    [1998] eKLR
  • North Tetu Farmers Co. Ltd v Joseph Nderitu Wanjohi
    [2016] eKLR
  • Mutitika v Baharini Farm Limited
    [1985] KLR 229
  • Nicholas Salat v Independent Electoral and Boundaries Commission & Others
    [2013] eKLR
  • Basil Criticos vs Attorney General and 8 Others
    (2012) eKRL
Jurisdiction invoked
Contempt jurisdiction of the Employment and Labour Relations Court over disobedience of its own orders, invoked through the Notice of Motion and the ELRC (Procedure) Rules, 2016

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, "Catherine Nyakoboke v Evengeline Njoka & 3 others [2020] KEELRC 475 (KLR)", Case Analysis (2020). Not stated in the judgment (Notice of Motion filed 16/6/2020 in an ELRC Petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/475/eng@2020-09-17

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.