Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedNot stated in judgment (arising from Petition dated 12 October 2020)· [2021] KEELRC 187 (KLR)

Domnic Ombagi & 120 others v Kisii University [2021] KEELRC 187 (KLR)

Employment and Labour Relations Court
15 December 2021
618 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court refused to punish Kisii University for unpaid salaries because parallel union cases already covered the same claim and no contracts were terminated.

What this practically means

#

Executive summary

#
The Petitioners, employees of Kisii University, obtained a conservatory order on 19 October 2020 preserving the subject matter of their Petition challenging redundancy, after the Court had earlier certified their 13 October 2020 Motion urgent. On 11 December 2020 the Court dismissed the main Petition because the Petitioners had not exhausted the statutory dispute resolution avenues under the Labour Relations Act and because their trade union had filed parallel proceedings over the same dispute. The Petitioners then moved the Court by a contempt application filed on 14 December 2020, alleging that the Respondent violated the order of 19 October 2020 by failing to pay their November 2020 salaries. The Respondent's Vice-Chancellor opposed the application by affidavit. The Court declined to find the Respondent or its officers in contempt for three reasons. First, the union had filed Kisumu Petition No. E009 of 2020 and Nakuru Petition No. 88 of 2020 over the same dispute, and the Kisumu Petition remained pending with witnesses testifying, so making findings on the November 2020 salaries claim risked inconsistent orders and embarrassment to the Court. Second, there was no evidence that the Petitioners' contracts, which the order preserved, had been terminated or lost; they remained employees and could not claim unfair termination. Third, any salaries found due could be awarded as a final remedy in the pending proceedings. The Court dismissed the Motion with no order on costs on 15 December 2021.

Key legal issues

#
01

Risk of inconsistent orders in parallel proceedings

Holding

The contempt application failed because the union's pending Kisumu Petition No. E009 of 2020 already covered the November 2020 salaries claim

Reasoning

The trade union had filed Kisumu Petition No. E009 of 2020 and Nakuru Petition No. 88 of 2020 over the same dispute. The Kisumu Petition was live with witnesses testifying, and the November 2020 salaries claim was a live question there. Making findings on the same head of claim risked conflicting outcomes and embarrassment to the Court.

p. 2
02

Whether the conservatory orders were violated

Holding

No contempt was established because the Petitioners' contracts were not terminated or lost

Reasoning

The orders of 19 October 2020 preserved the subject matter of the Petition, namely the Petitioners' contracts. Since those contracts had not been terminated, the Petitioners remained employees and could not claim unfair termination; without a demonstrated violation of the orders, no contempt could be founded.

p. 2
03

Availability of salaries as a final remedy

Holding

Any salaries found due can be awarded at the conclusion of the main Petition rather than enforced via contempt

Reasoning

The Court reasoned that unpaid salaries claimed as having been due under the preserved contracts were better determined as part of the final disposition of the pending proceedings, not through a contempt motion, which requires proof of a clear breach of the court's orders.

p. 2

Legal principles established

#
  • Where a dispute over the same subject matter is pending in other proceedings, a court may decline a contempt application to avoid conflicting findings
  • An applicant who remains in employment under preserved contracts cannot claim unfair termination for purposes of contempt
  • Salaries found due can be granted as a final remedy rather than through contempt proceedings

Court orders

#
  1. 1.The Court declines to find the Respondent or any of its officers in contempt
  2. 2.The Motion is dismissed with no order on costs

Authorities

#

Legislation

  • Labour Relations ActNot specified (statutory dispute resolution avenues)

Cases cited (2)

  • Kenya Universities Staff Union v Kisii University
    Kisumu Petition No. E009 of 2020
  • Kenya Universities Staff Union v Egerton University and Kisii University
    Nakuru Petition No. 88 of 2020
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over contempt of its own orders under the Employment and Labour Relations Court Act and the Labour Relations Act framework (not expressly cited in the judgment)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Domnic Ombagi & 120 others v Kisii University [2021] KEELRC 187 (KLR)", Case Analysis (2021). Not stated in judgment (arising from Petition dated 12 October 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/187/eng@2021-12-15

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