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ELRCPartially AllowedNot stated in the judgment· [2021] KEELRC 1149 (KLR)

Mabel Kibore v National Oil Corporation [2021] KEELRC 1149 (KLR)

Employment and Labour Relations Court
29 July 2021
2,779 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Respondent/Applicant (WARMA) filed a Notice of Motion dated 28th June 2021 seeking review, vacation and/or setting aside of orders issued on 9th December 2020 and 8th November 2017, which had required its CEO to show cause why contempt proceedings should not be commenced for non-compliance with reinstatement and salary arrears orders. The Applicant asserted that the Claimant was reinstated and paid arrears for August 2017 to February 2018, thereafter absconded, and had secured alternative employment with First Community Bank from January 2019 (per NHIF feedback), so that continued salary orders would amount to double payment. The Claimant opposed, contending the application was an abuse of process, that she was locked out and harassed rather than absent, and filed a preliminary objection that the Applicant was in contempt and not entitled to audience, and that the application was incompetent for having been filed by an unknown agent (Robson Harris Advocates LLP following conversion from a partnership without a notice of change). Ruling on 29th July 2021, Nzioki Wa Makau J found no finding of contempt had been made against the Applicant or its officers and declined to punish the CEO and manager, citing the Claimant's own material non-disclosure of her new employment and the Applicant's partial compliance. The court confined the Claimant's salary award to August 2017 to February 2018, made no further salary orders, made no orders on the preliminary objection or the applications, and directed the suit be listed for directions on 27th September 2021 on the sole remaining issue. The court also observed that the law firm's conversion to an LLP required a notice of change of advocates.

Key legal issues

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01

Whether a party allegedly in contempt is entitled to audience

Holding

No judicial finding of contempt had been made against the Applicant; the court entertained its application notwithstanding the objection

Reasoning

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.

p. 2
02

Whether the preliminary objection met the Mukisa Biscuit threshold

Holding

The court treated the objection as raising issues of fact and did not uphold it, making no orders on it

Reasoning

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.

p. 3
03

Representation by Robson Harris Advocates LLP after conversion from a partnership

Holding

The court observed that the failure to effect a notice of change meant, viewed strictly, the Respondent had no advocate on record

Reasoning

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.

p. 3
04

Whether the orders for salary arrears should be reviewed given the Claimant's alternative employment

Holding

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

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The Claimant to receive pay for the months of August 2017 to February 2018
  2. 2.No further orders in relation to the payment of salaries
  3. 3.The Court will not punish Mr. Gideon Leparan Ole Morintat and Ms. Carol Musau for contempt
  4. 4.The suit to be listed for directions on 27th September 2021 on the sole remaining issue in the claim
  5. 5.No orders on the objections or the applications subject of the Ruling

Authorities

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Legislation

  • Public Officers Ethics ActRegulation 26

Cases cited (3)

  • Hadkinson v Hadkinson
    [1952] ALL ER 567
  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    [1969] E.A. 696
  • Quick Enterprises Limited v Kenya Railways Corporation
    HCCC 22 of 1999 Kisumu High Court
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

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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, "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.