Matilda Tenge Mwachia v Kenya Industrial Estate Limited & another [2021] KEELRC 1458 (KLR)
The bottom line
#A Kenyan court refused to jail an employer's CEO for contempt, ruling that unpaid salary is a separate lawsuit and employees must attend disciplinary hearings.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there is contempt of court in respect of the orders issued on 13th August, 2020
- 2.Whether the court should stop the second disciplinary process against the claimant
- 3.Who should pay costs
Key legal issues
#Whether there was contempt of court
No contempt established; the commencement of a fresh disciplinary process was in line with the court's orders of 13th August, 2020
The orders of 13th August, 2020 declared the prior process null and void but expressly permitted the respondent to commence a fresh, legal disciplinary process, while directing the claimant to continue serving. The claimant was suspended on 23rd October, 2020 after stay orders were discharged, to allow the fresh process. A dishonoured cheque was not proved and the medical cover was reactivated. The standard of proof beyond reasonable doubt was not met.
Whether non-payment of salary and allowances can found contempt proceedings
No; such non-payment is a new cause of action that cannot be enforced through contempt or addressed in these proceedings
The cause of action registered in the suit concerned the unlawful disciplinary process, not wages. Claims of unpaid salary from July to October 2020 arise afresh and would deny the respondents a fair hearing if decided on affidavits in contempt proceedings; a hearing in the main claim is the proper forum.
Whether the second disciplinary process should be stopped
No; the fresh disciplinary process is court sanctioned and the claimant must submit to it
The claimant cannot cling to the positive parts of the orders of 13th August, 2020 while resisting the liberty the same orders gave the respondent. She has been issued a show cause notice, replied, but failed to attend hearings on several occasions, stalling the process. Failure to attend as directed by the employer is a breach of the employment contract, and the respondent may consider section 44 of the Employment Act.
Legal principles established
#- An applicant in contempt proceedings must prove contempt beyond reasonable doubt, showing wilful and mala fides refusal to comply
- Once the applicant proves the order, service or notice and non-compliance, the respondent bears an evidential burden on wilfulness and mala fides
- The employer retains the prerogative to discipline its employees within the law and its internal disciplinary policy
- An employee facing disciplinary action cannot hold the employer to ransom by refusing to attend hearings at their convenience
Court orders
#- 1.Both applications dated 24th November, 2020 and 20th January, 2021 dismissed as without merit
- 2.The claimant shall abide lawful directions issued by the employer
- 3.Where there is disobedience of directions issued, the respondent shall be at liberty to deal with the subsisting employment as deemed necessary
- 4.Costs awarded to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 3, 12 and 20 of the Employment and Labour Relations Court Act; Articles 1, 2, 3, 41, 47, 75, 159 and 236 of the Constitution invoked by the parties; Section 5(1) of the Judicature Act and Sections 1A, 1B and 3A of the Civil Procedure Act for the contempt application
Relief refused
#Committal of the Managing Director Dr. Parmain Narikae to civil jail for contempt of the orders of 13th August, 2020
No contempt proved; the fresh disciplinary process was court-sanctioned and non-payment of salary is a new cause of action
Temporary injunction to stay the second disciplinary proceedings and all consequential processes
The fresh disciplinary process is court sanctioned and the claimant should submit to it
Order compelling the respondents to allow the claimant to resume duties with full salary pending the main suit
The claimant remains suspended pending disciplinary process and must oblige lawful instructions; her repeated failure to attend hearings does not entitle her to relief
Mandatory injunction compelling payment of half salary and full allowances
The dispute over payment of salary and allowances is a new cause of action that cannot be addressed in the current proceedings and must be resolved at a hearing
Costs
Costs awarded to the respondents.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, applications dated 24th November, 2020 and the other dated 20th January, 2021 are found without merit and hereby dismissed. The claimant shall abide lawful directions issued by the employer.
An applicant in a contempt application has the onus to prove the existence of contempt and, in discharging this onus, the applicant must show the existence of contempt of Court beyond reasonable doubt.
On the facts presented before this court, the court finds no matter of contempt of court.
To the contrary, such fresh disciplinary process is court sanctioned. The claimant should willingly submit to the same
The claimant cannot hold the respondent to ransom and cling on the positive parts of the orders granted on 13th August, 2020.
Where the employee has the right to a hearing, the employer has the right to terminate the employee upon following due process.
Issues in the judgment
#The claimant's name is not given anywhere in the ruling, nor is the case number of these proceedings stated; only the main suit 'Nairobi ELRC No.284 of 2020' is referenced
The judgment inconsistently spells the Managing Director's surname as 'Narikae' and 'Nakirae'
Discrepancy on when the interim stay orders lapsed: the claimant's affidavit says the stay application was dismissed on 22nd October, 2020 while the respondents' affidavit and the judgment's narrative variously say the stay orders were discharged on 22nd/23rd October, 2020
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Caroline Kemuma v Teachers Service Commission & 3 others [2021] KEELRC 1154 (KLR)[2021] KEELRC 1154 (KLR)27 Jul 2021
Cite this brief
#Cite this brief
Caselaw, "Matilda Tenge Mwachia v Kenya Industrial Estate Limited & another [2021] KEELRC 1458 (KLR)", Case Analysis (2021). Nairobi ELRC No. 284 of 2020 (referenced as the main suit in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1458/eng@2021-04-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.