Arero v Munubi & 4 others (Civil Appeal 196 of 2020) [2022] KECA 58 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that an acting NLC boss who ignored a court order was properly convicted of contempt, so officials can't dodge court judgments.
What this practically means
#Executive summary
#Key legal issues
#Service of the decree and awareness of the judgment
The appellant was properly served and aware of the decree; service on her authorized secretary sufficed
The trial court established that the decree was extracted and served on the appellant's secretary, Habiba, whom the appellant had authorized to accept service. The appellant also admitted in her replying affidavit that her advocates had informed her of the judgment and decree. Service was therefore proper and her contempt could not be excused on the basis of non-service.
Authority of the Acting CEO to implement the decree
The appellant had the power and authority to implement the decree and her failure was deliberate contempt
Relying on section 43 of the Interpretation and General Provisions Act, duties of an office vest in whoever holds it for the time being. Article 250(12) of the Constitution and section 20(4) of the National Land Commission Act make the secretary the CEO and accounting officer. The appellant ran the NLC throughout the Commissioners' absence, so she could not plead lack of authority; instead she denied respondents access to offices and stopped salaries.
Fair hearing before conviction and sentence
The conviction and sentence were well founded; the trial court properly proceeded to sentence the appellant in her absence after she failed to attend or honour directions
After delivery of the ruling, the matter was scheduled for mitigation and sentencing. The appellant failed to attend, her advocate claimed he could not reach her despite a pending stay application, and she again failed to honour the direction that she be produced in court. The trial court had no option but to proceed in her absence, and this did not vitiate the conviction or sentence.
First ground of the cross-appeal (contempt from April 2019)
The trial judge was aware of the appellant's conduct of stopping salaries and locking offices; the ground failed
The Court perused the record and the ruling and found that the learned judge was well aware of the appellant's conduct, so the contention that this was ignored was incorrect. The ground was accordingly dismissed.
Second ground of the cross-appeal (contempt by Commissioners / damages)
The Court declined to make any finding against the Commissioners and held the ground misplaced in this appeal
This Court had stayed proceedings and execution in Kabale Tache Arero v Salome Munubi & 3 others, the Commissioners were not parties to the appeal and there was no evidence of service on them, and a separate appeal (Civil Appeal No. 248 of 2020) was pending against the underlying judgment. The grievance belonged in that appeal, not this contempt appeal.
Legal principles established
#- Where a written law confers a power or imposes a duty on the holder of an office, the power may be exercised and the duty performed by the person for the time being holding that office, unless a contrary intention appears
- The secretary of the National Land Commission is the CEO and accounting officer of the Commission by virtue of Article 250(12) of the Constitution and section 20(4) of the National Land Commission Act, and thus has the power to implement decrees against the Commission
Court orders
#- 1.Dismissal of the appeal in its entirety
- 2.Dismissal of the cross-appeal in its entirety
- 3.Each party to bear its own costs
- On appeal from
- Employment and Labour Relations Court
- ELRC Petition No. 8 of 2019
- Jurisdiction invoked
- First appellate jurisdiction of the Court of Appeal under Article 164 of the Constitution of Kenya, 2010 (not expressly cited in the extract), appealing the ELRC contempt ruling
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Arero v Munubi & 4 others (Civil Appeal 196 of 2020) [2022] KECA 58 (KLR)", Case Analysis (2022). Court of Appeal appeal arising from ELRC Petition No. 8 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/58/eng@2022-02-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.