Mabel Kibore v National Oil Corporation [2021] KEELRC 1149 (KLR)
The bottom line
#A Kenyan employment court cut a dismissed employee's salary award because she hid her new job, but refused to punish her ex-employer for contempt.
What this practically means
#Executive summary
#Key legal issues
#Whether a party allegedly in contempt is entitled to audience
No judicial finding of contempt had been made against the Applicant; the court entertained its application notwithstanding the objection
The court noted there was no judicial decision adjudging the Applicant or its officers as contemnors. The Applicant also invoked the Hadkinson v Hadkinson exception, submitting that its motion sought to ascertain the truth through fresh evidence and that the matter fell within the court's judicial discretion. The court did not bar the Applicant from being heard.
Whether the preliminary objection met the Mukisa Biscuit threshold
The court treated the objection as raising issues of fact and did not uphold it, making no orders on it
The Applicant submitted the objection raised factual matters and sought exercise of judicial discretion, contrary to the Mukisa Biscuit locus classicus, citing Quick Enterprises Limited v Kenya Railways Corporation. The court ultimately made no orders on the objection and proceeded to determine the substantive motion on its merits.
Representation by Robson Harris Advocates LLP after conversion from a partnership
The court observed that the failure to effect a notice of change meant, viewed strictly, the Respondent had no advocate on record
The court held that an LLP is a distinct legal entity; a law firm that has converted must file a notice of change of advocates, as a mere letter is insufficient. However, the court did not strike out the application on this basis, instead proceeding to dispose of the substantive application.
Whether the orders for salary arrears should be reviewed given the Claimant's alternative employment
The Claimant's salary arrears were limited to August 2017 to February 2018, with no further salary orders, reflecting her non-disclosure and the partial compliance
The court found the Claimant less than candid for not disclosing her employment with First Community Bank (from January 2019 per NHIF feedback), and found there was no proof of payment of salaries for part of the claimed period. It balanced these factors by confining the salary award to August 2017 to February 2018 and declining to punish the Applicant's officers for contempt.
Legal principles established
#- A preliminary objection must consist purely of points of law and cannot be raised where facts must be ascertained or judicial discretion exercised
- A firm that has converted to an LLP is a distinct legal entity and must file a notice of change of advocates to appear in a matter
Court orders
#- 1.The Claimant to receive pay for the months of August 2017 to February 2018
- 2.No further orders in relation to the payment of salaries
- 3.The Court will not punish Mr. Gideon Leparan Ole Morintat and Ms. Carol Musau for contempt
- 4.The suit to be listed for directions on 27th September 2021 on the sole remaining issue in the claim
- 5.No orders on the objections or the applications subject of the Ruling
- Jurisdiction invoked
- Inherent supervisory and review jurisdiction over interlocutory orders in a claim before the Employment and Labour Relations Court; the judgment itself does not cite the enabling provision
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mabel Kibore v National Oil Corporation [2021] KEELRC 1149 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1149/eng@2021-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.