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ELRCDismissedCause No 225 of 2019· [2020] KEELRC 1844 (KLR)

Simon Mungathia Ithai v National Hospital & 9 others [2020] KEELRC 1844 (KLR)

Employment and Labour Relations Court
8 January 2020
BOByram Ongaya
1,279 words in judgment
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The bottom line

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The Employment Court dismissed a contempt claim against Kenyatta National Hospital because the job advertised differed from the employee's protected position.

What this practically means

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Executive summary

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The claimant, an employee of the respondent hospital, moved the Court by notice of motion dated 02.10.2019 under section 5 of the Judicature Act and the English Civil Procedure (Amendment No.2) Rules, 2012, seeking contempt findings against the respondent and its Board members. He sought declarations that, despite an injunction of 08.04.2019 (extended on 10.04.2019) restraining the respondent from advertising, recruiting, appointing or promoting another person to the office of Corporate Affairs and Communication or Head of Department Marketing and Communication held by him, the respondent disobeyed the order by advertising the post of Head, Marketing and Communication in the Daily Nation of 23.07.2019, and that the Board members be committed to civil jail for six months each. The respondent, through its CEO's replying affidavit, denied breach, contending the advertised post (Job Group K3 (Q)) was different from the claimant's position of Chief Public Relations Officer, Job Group K5 (N), which was the position subject of the order and remained preserved. The Court found the respondents were aware of and bound by the orders but held that the advertised position was materially different from the claimant's preserved position; no order barred its creation or filling; and the purpose of the interim order was to preserve the claimant's substantive position, not the duties he performed. The Court dismissed the application with costs in the cause on 8 January 2020 (Byram Ongaya, J).

Key legal issues

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01

Contempt of court - disobedience of injunction orders of 08.04.2019 and 10.04.2019

Holding

No disobedience established; the advertised position was materially different from the position preserved by the order

Reasoning

The claimant held Chief Public Relations Officer, Job Group K5 (N), but performed duties of Head of Marketing and Communications. The order preserved his position, not the duties. The advertised post (Head, Marketing and Communication, Job Group K3 (Q)) was different and there was no evidence it was irregularly created to defeat the order. The respondents confirmed the claimant's position remained preserved.

p. 2
02

Knowledge of and binding effect of Court orders

Holding

The respondents were aware of and bound by the orders as they did not deny service or awareness

Reasoning

The Court found that the respondents had not denied service of the orders or awareness of them, and therefore at all material times were aware of and bound by the terms of the orders. However, on the facts, no breach of those orders was established.

p. 2

Legal principles established

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  • An interim order preserves the position held by the claimant so that depending on the litigation outcome, continued employment as appropriate remains possible; it does not bar an employer from assigning the claimant's duties to another officer or office
  • A holder of a lower office may perform duties attached to a higher office as assigned by the employer, and the lower office does not become moribund if the higher office is substantively filled

Court orders

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  1. 1.The application is hereby dismissed
  2. 2.The costs of the application in the cause

Authorities

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Legislation

  • Judicature Act, Cap 8 Laws of Kenyasection 5
  • Laws of England, Cap 49not specified
  • Civil Procedure (Amendment No.2) Rules, 2012 of England and WalesRules 81.8 and 81.10 of Part 81
Jurisdiction invoked
Section 5 of the Judicature Act, Cap 8 Laws of Kenya; Cap 49 Laws of England; Rules 81.8 and 81.10 of Part 81 of the Civil Procedure (Amendment No.2) Rules, 2012 of England and Wales (contempt of court jurisdiction)

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, "Simon Mungathia Ithai v National Hospital & 9 others [2020] KEELRC 1844 (KLR)", Case Analysis (2020). Cause No 225 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1844/eng@2020-01-08

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