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ELRCDismissedNot stated in the judgment· [2020] KEELRC 1657 (KLR)

Bernard Mwaura Mbuthia v Nyahururu Water & another; County Government of Laikipia (Interested party) [2020] KEELRC 1657 (KLR)

Employment and Labour Relations Court
6 February 2020
1,434 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The claimant, formerly managing director of the respondent, moved the court by Notice of Motion seeking maintenance of the status quo subsisting on 6th November, 2019, a stay of the respondent's decision of 15th November, 2019 terminating his employment, and an order holding John Muthee, the chairman of the board, in contempt of the orders of 24th October and 6th November, 2019, with committal to civil jail or, alternatively, attachment of his properties. The respondent and the interested party denied any breach, explaining that the 24th October orders had been stayed on 6th November to allow good-faith negotiations, and that the claimant was dismissed after failing to respond to a show cause notice. The court framed three issues: maintenance of status quo, stay of termination, and contempt. It held that the orders of 24th October, 2019 had been stayed on 6th November, 2019 to allow negotiations, so there was no wilful disobedience and no contempt. Relying on section 15 of the Employment and Labour Relations Court Act, 2011, it observed that where negotiation produces no agreement, parties revert to the position before negotiations; since no consent was reached and the employment had ceased, staying the termination or reverting to the status quo would ignore the principles of specific performance. Any unlawfulness or unfairness in the dismissal was left for determination at the full hearing of the Amended Memorandum of Claim. The application was declined with costs in the cause.

Key legal issues

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01

Whether contempt of court arose from the termination of the claimant's employment on 15th November, 2019 despite the directions of 24th October and 6th November, 2019

Holding

No contempt. The orders of 24th October, 2019 were stayed on 6th November, 2019 to allow negotiations, so the respondent was not prohibited from taking disciplinary action; dismissal for failure to respond to a show cause notice was not a prohibited act.

Reasoning

The court traced the sequence of orders: on 24th October 2019 work benefits were restored and the claimant kept off his office; on 6th November 2019 the parties agreed in good faith to negotiate and the 24th October orders were stayed, save for payment of due salaries. Contempt requires wilful disobedience of a subsisting order. Since the October orders stood stayed and the negotiation process did not produce a consent, the board's deliberation and dismissal did not breach any subsisting order.

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02

Whether the termination of employment should be stayed or the parties directed to revert to the status quo as at 6th November, 2019

Holding

Declined. The employment has ceased and staying the termination or reverting to the status quo would ignore the principles upon which specific performance applies; any unlawfulness or unfairness is to be addressed at a full hearing of the Memorandum of Claim.

Reasoning

The court held that the negotiated settlement never crystallised into a consent; the claimant was summarily dismissed on 15th November 2019 and has since amended his Memorandum of Claim. Reinstating or staying termination would amount to specific performance of an employment contract that has ended, contrary to established principles. Fairness of the dismissal is a matter for the substantive suit.

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03

The court's power to adopt and implement means of dispute resolution under section 15 of the Employment and Labour Relations Court Act

Holding

Section 15 empowers the court to adopt and implement means of dispute resolution but does not empower the court to take over and determine disagreed issues by itself unless the matter is referred back to the court to address the registered dispute.

Reasoning

Relying on TSC v KNUT, the court characterised section 15 proceedings as an alternative process away from court. Where parties agree, the agreement is adopted as a consent order; where they do not, parties revert to the pre-negotiation position and the registered dispute proceeds. Since no agreement was achieved here, the underlying Memorandum of Claim must proceed to full hearing.

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Legal principles established

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  • Contempt of court requires wilful disobedience of a judgment, decree, direction, order or other process of the court, or wilful breach of an undertaking given to the court.
  • Court-annexed negotiation under section 15 of the Employment and Labour Relations Court Act denotes a separate proceeding away from court; where agreement is reached it is recorded as an order of the court, and where no agreement is reached, parties revert to the position before negotiations commenced.

Court orders

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  1. 1.Application dated 16th November, 2019 declined
  2. 2.Costs in the cause
  3. 3.Hearing directions to issue as the Memorandum of Claim remains pending determination

Authorities

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Legislation

  • Contempt of Court ActSection 4
  • Employment and Labour Relations Court Act, 2011Section 15(1)
  • Employment and Labour Relations Court Act, 2011Sections 15(3)(4)
  • Employment Act (referred to as Section 77(3) in the judgment, statute not named)Section 77(3)

Cases cited (2)

  • Republic versus Ahmad Abolfathi Mohammed & another
    [2018] eKLR
  • Teachers Service Commission (TSC) versus Kenya Union of Teachers (KNUT) & 3 Others
    [2015] eKLR
Jurisdiction invoked
Section 15 of the Employment and Labour Relations Court Act, 2011 as read with sections 15(3)(4) and Section 77(3) of the Employment Act (as discussed by the court); Article 162(2) jurisdiction inferred by court designation (not expressly cited)

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, "Bernard Mwaura Mbuthia v Nyahururu Water & another; County Government of Laikipia (Interested party) [2020] KEELRC 1657 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1657/eng@2020-02-06

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