Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCourt of Appeal appeal arising from ELRC Petition No. 8 of 2019· [2022] KECA 58 (KLR)

Arero v Munubi & 4 others (Civil Appeal 196 of 2020) [2022] KECA 58 (KLR)

Court of Appeal
4 February 2022
2,322 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

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

#
The Court of Appeal at Nairobi (Musinga, Karanja and Kiage, JJ.A) dismissed both the appeal and the cross-appeal in this contempt matter arising from the Employment and Labour Relations Court (M. Onyango, J). The appellant, then Secretary to the National Land Commission and Acting CEO, had been convicted of contempt for failing to implement the trial court's order renewing the contracts of four former NLC directors, and fined Kshs.300,000 with one month's imprisonment in default. The Court held that the appellant was properly served with the decree, service on her authorized secretary sufficing, and that under section 43 of the Interpretation and General Provisions Act, Article 250(12) of the Constitution and section 20(4) of the National Land Commission Act, she as secretary/CEO had power to implement the decree and ran the NLC throughout the Commissioners' interregnum. Her failure to attend mitigation and sentencing after the ruling did not vitiate the conviction; the trial court properly sentenced her in absence. The cross-appeal sought punishment of the new Commissioners and damages of Kshs.31,200,000 per respondent for non-implementation. The Court declined: execution and proceedings had been stayed in Kabale Tache Arero v Salome Munubi & 3 others; the Commissioners were not parties and were not shown to have been served; and the grievance belonged in Civil Appeal No. 248 of 2020. Both appeal and cross-appeal were dismissed with each party bearing its own costs.

Key legal issues

#
01

Service of the decree and awareness of the judgment

Holding

The appellant was properly served and aware of the decree; service on her authorized secretary sufficed

Reasoning

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.

p. 4
02

Authority of the Acting CEO to implement the decree

Holding

The appellant had the power and authority to implement the decree and her failure was deliberate contempt

Reasoning

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.

p. 4
03

Fair hearing before conviction and sentence

Holding

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

Reasoning

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.

p. 5
04

First ground of the cross-appeal (contempt from April 2019)

Holding

The trial judge was aware of the appellant's conduct of stopping salaries and locking offices; the ground failed

Reasoning

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.

p. 5
05

Second ground of the cross-appeal (contempt by Commissioners / damages)

Holding

The Court declined to make any finding against the Commissioners and held the ground misplaced in this appeal

Reasoning

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.

p. 5

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. 1.Dismissal of the appeal in its entirety
  2. 2.Dismissal of the cross-appeal in its entirety
  3. 3.Each party to bear its own costs

Authorities

#

Legislation

  • Public Service Commission Actsection 2
  • Public Service Commission Actsection 34
  • Interpretation and General Provisions Actsection 43
  • Constitution of Kenya, 2010Article 250(12)
  • National Land Commission Actsection 20(4)
  • Anti-Corruption and Economic Crimes Actsection 62
  • Anti-Corruption and Economic Crimes Actsection 62(1) and 62(4)

Cases cited (2)

  • Republic v Ahmad Abolfathi Mohammed & Another
    [2019] eKLR
  • Kabale Tache Arero v Salome Munubi & 3 others
    [2020] eKLR
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.