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ELRCDismissedCause No 991 of 2018· [2021] KEELRC 1627 (KLR)

Joyce Nasumaye v DHL Exel Supply Chain (K) Limited [2021] KEELRC 1627 (KLR)

Employment and Labour Relations Court
28 May 2021
5,710 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that an employer's internal job reassignment wasn't contempt of court or victimisation, and warned the employee to progress her main case quickly.

What this practically means

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Executive summary

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The Claimant, an employee of DHL Supply Chain Kenya Ltd, filed two notices of motion dated 22nd and 28th October 2020. The first sought a stay of the Respondent's letter of 28th September 2020 changing her job description, citation and committal to prison of the Managing Director (Mr. Tito Okuku) and Human Resource Manager (Ms. Lilian Inziani) for contempt of consent orders of 4th July 2018, and leave to amend her claim. The second sought orders restraining the Respondent from compelling her to sign documents for the new role and from victimising or frustrating her. The Respondent countered that the change was an exercise of managerial prerogative in response to her underperformance, affected nine other employees, left her terms and conditions unchanged, and did not breach the orders; it also urged that contempt must be proved to a heightened standard and that committal is a last resort. Maureen Onyango J. construed the consent orders, which restrained redundancy, suspension and victimisation, and held that 'interference' did not bar re-designation or transfer within the employer's managerial prerogative. The court found no deliberate disobedience, no proof of victimisation, and agreed the Claimant was misusing the orders given her delay in prosecuting the main suit. Both applications were dismissed with costs, and the Claimant was directed to fix the suit for hearing within 90 days failing which the consent orders would lapse.

Key legal issues

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01

Elements and standard of proof for civil contempt

Holding

The applicant must prove the order was granted, the respondent had knowledge of it, and there was failure to comply; the breach must be deliberate and mala fide, proved to a standard higher than balance of probabilities but not exactly beyond reasonable doubt

Reasoning

The court adopted Mativo J.'s restatement of the elements of civil contempt and the authorities on the standard of proof, including Shimmers Plaza Limited and Mutika v Baharim Farm Ltd. The Court had to be satisfied beyond any shadow of a doubt that the alleged contemnors acted with full knowledge and notice of the order. Contempt being of a criminal character, the burden was on the Claimant, which she failed to discharge.

p. 4
02

Scope of the consent orders of 4th July 2018 - what constitutes 'interference' with employment

Holding

'Interference' in the context of the orders meant termination by redundancy, another mode, or suspension; it did not bar re-designation or transfer within the employer's managerial prerogative

Reasoning

The court construed the consent orders, which restrained redundancy, victimisation and suspension, and held that a transfer from Control Tower Planner to a new role under a reorganised Central Transport Office did not fall within 'interference'. The letter expressly stated terms and conditions remained unchanged, and the staffing changes affected at least nine other employees, so the Claimant was not singled out.

p. 5
03

Whether the Respondent victimised the Claimant

Holding

No proof of victimisation; the movement was justified by underperformance and affected other employees equally

Reasoning

The court found the Respondent had demonstrated with specific email excerpts from 13th July to 11th September 2020 that the Claimant failed to meet reporting deliverables despite reminders. The changes were part of a wider reorganisation affecting 9 other officers, and her terms and conditions of employment remained unchanged, so there was no differential or unfavourable treatment.

p. 8
04

Alleged misuse of court orders and delay in prosecuting the main claim

Holding

The Claimant was misusing the consent orders; she was directed to fix the suit for hearing within 90 days failing which the consent orders would lapse

Reasoning

The consent orders were recorded on the understanding that the suit would be fast tracked, but since Ongaya J.'s ruling of 19th December 2019 directing the parties to fix a hearing date on priority basis, the Claimant had filed contempt applications but made no effort to dispose of the main suit. The court found the enforcement mechanism was being misused while the substantive claim remained undetermined.

p. 8

Legal principles established

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  • Contempt of court is the wilful disobedience of court orders and requires proof that the order was granted, the respondent had knowledge of it, and failed to comply
  • The standard of proof in contempt proceedings is higher than the balance of probabilities, almost but not exactly beyond reasonable doubt
  • Consent orders restraining interference with employment do not curtail an employer's managerial prerogative to re-designate or transfer an employee, provided terms and conditions remain unchanged
  • An order committing a person to prison for contempt is to be adopted only as a last resort

Court orders

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  1. 1.Both applications dated 22nd October 2020 and 28th October 2020 dismissed with costs
  2. 2.The Claimant directed to expeditiously fix the suit for hearing within 90 days
  3. 3.Should the suit not be fixed within 90 days, the consent orders (stated as of 4th July 2020) to automatically lapse

Authorities

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Legislation

  • Employment and Labour Relations Court Practice RulesRule 17
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B

Cases cited (11)

  • Teachers Service Commission v Kenya National Union of Teachers & 2 Others
    Petition No. 23 of 2013
  • Wendano Matuu Co Limited & 2 others v Joshua Kimeu Kioko & 6 others; Philip Muli Munyaka (Interested Party)
    [2019] eKLR
  • A.B. & Another v R.B.
    [2016] eKLR
  • Burchell v Burchell
    Case No. 364 of 2005
  • James Sande Amuyeka & 6 others v Super Foam Limited
    [2015] eKLR
  • Kenya Building, Construction, Timber and Furniture Industries Employees Union v Timsales Limited
    [2019] eKLR
  • Tailors and Textiles Workers Union v Hela Intimates (EPZ) Limited and Alltex (EPZ) Ltd
    [2019] eKLR
  • Katsuri Limited v Kapurchand Depar Shah
    [2016] eKLR
  • Mengich t/a Mengich & Co Advocates & Another v Joseph Mabwai & 10 Others
    [2018] eKLR
  • Shimmers Plaza Limited v National Bank of Kenya Limited
    [2015] eKLR
  • Mutika v Baharim Farm Ltd
    (1985) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction (Article 162(2) implied; not expressly stated in judgment)

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, "Joyce Nasumaye v DHL Exel Supply Chain (K) Limited [2021] KEELRC 1627 (KLR)", Case Analysis (2021). Cause No 991 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1627/eng@2021-05-28

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