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Court of AppealDismissedFirst Appeal from Bungoma High Court contempt proceedings (Notice of Appeal dated 19th February, 2019; Memorandum of Appeal dated 21st February, 2019)

Wekesa & 2 others v Munialo (Civil Appeal 28 of 2019) [2025] KECA 679 (KLR)

Court of Appeal of Kenya
11 April 2025
HOHannah OkwenguJMJ. MativoJNJoel Ngugi
6,600 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that knowing about a court order and defying it is contempt, even without personal service.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal, Kisumu (Okwengu, Mativo and Ngugi, JJ.A), against a High Court (Riechi, J.) ruling finding the appellants - officials of Nzoia Water Services Company Limited - guilty of contempt of court orders issued on 25th January, 2018 by the High Court (Aroni, J.) in the respondent's Judicial Review application, which stayed the implementation of his suspension as Managing Director and required that he remain in his position pending the substantive motion. The appellants argued, among other grounds, that the contempt orders were directed at different parties; that the Board retained disciplinary authority as employer; that the contempt proceedings belonged in the Employment and Labour Relations Court; that personal service was required; and that no breach was proved to the requisite standard. The Court of Appeal rejected each ground. It held that the High Court that issued the orders had jurisdiction to enforce them through contempt regardless of the employment character of the underlying dispute, and that orders in existence and not set aside must be obeyed. Applying the elements of civil contempt as laid down in Samuel M. N. Mweru v National Land Commission, the Court found the order clear and unambiguous, known to the appellants despite their not being named parties, and deliberately breached through the 1st February, 2018 suspension letter. Affirming Shimmers Plaza and Basil Criticos, the Court held that knowledge of an order supersedes personal service, and that parties cannot evade orders by reconstituting themselves or acting in different capacities. The appeal was dismissed with costs to the respondent; the High Court contempt ruling and the fines of Kshs. 300,000.00 against each appellant were affirmed.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the High Court had jurisdiction to entertain the contempt proceedings given that the underlying dispute was an employment matter falling within the Employment and Labour Relations Court
  2. 2.Whether the contempt order of 25th January, 2018 was binding on the appellants who were not named parties to the Judicial Review application
  3. 3.Whether knowledge of the court order, without personal service, suffices to establish contempt
  4. 4.Whether the appellants disobeyed the court orders of 25th January, 2018, and whether such disobedience was deliberate
  5. 5.Whether the appellants could rely on their capacity as officers/agents of the company-employer to escape liability for contempt

Key legal issues

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01

Jurisdiction of the High Court to enforce its own orders through contempt where the underlying dispute is an employment matter

Holding

The High Court that issued the orders of 25th January, 2018 was the proper court to enforce them through contempt proceedings; the employment-law characterisation of the underlying dispute was irrelevant.

Reasoning

The appellants argued the contempt should have been in the Employment and Labour Relations Court since it concerned employer-employee discipline. The Court rejected this as a non-starter: the orders being disobeyed were issued by the High Court, so that court was duty-bound to enforce them. The validity or otherwise of the orders was beside the point; an order in existence and not set aside must be obeyed, and any challenge must be made to the court that issued it or on appeal.

p. 10
02

Whether contempt lies against persons not named in the order but with knowledge of it

Holding

The appellants, though not named parties in the Judicial Review application, acted as members or officials of the named Interested Party's Board, all knew of the orders, and were covered by them; knowledge dispenses with the need for personal service.

Reasoning

The Court traced the shift in Kenyan jurisprudence from strict personal service to knowledge-based liability, relying on Shimmers Plaza and Basil Criticos. All appellants demonstrated knowledge of the orders in their replying affidavits. Their attempt to act as the Board so as to achieve what the orders had stayed could not succeed; parties cannot escape contempt by reconstituting themselves or acting in different capacities to defeat court orders.

03

Whether the appellants breached the terms of the order of 25th January, 2018

Holding

Yes - the 1st February, 2018 suspension letter defied both limbs of the order: the stay of implementation of the impugned decision (which covered the investigations) and the specific requirement that the respondent remain in his position as Managing Director.

Reasoning

The Court construed the order as having two parts: staying implementation of the impugned decision and all subsequent steps (including investigations), and requiring the respondent to remain in office. The 1st February, 2018 letter suspended the respondent for alleged misconduct over the same undefined period as the stayed 8th January, 2018 letter, and removed him from office - a direct defiance. The 'goons' allegation was a red herring; the trial judge based his finding solely on the suspension letter, and the defiance was deliberate subterfuge.

p. 12
04

Standard of review on first appeal

Holding

A first appeal requires a fresh review of facts and law, but findings of fact by the trial court should not be disturbed unless based on no evidence, a misapprehension of the evidence, or wrong principles.

Reasoning

The Court restated the classic Selle v Associated Motor Boat Co. formula: it must re-evaluate the evidence and draw its own conclusions while recognising that it should not interfere with trial court findings of fact unless those findings were based on no evidence, a misapprehension of the evidence, or where the trial judge demonstrably acted on wrong principles. Applying that standard, the Court found no basis for interfering with the contempt ruling.

p. 9

Legal principles established

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  • Knowledge of a court order suffices for contempt proceedings; personal service is not a strict requirement where the contemnor is shown to have acted with knowledge of the order.
  • A party who considers a court order to have been issued without jurisdiction must have it set aside by a competent court; it may not simply disobey it.
  • A court whose orders are in existence and have not been set aside may enforce them, including through contempt proceedings, regardless of whether it had jurisdiction to issue them in the first place.
  • Individuals who become aware of court orders cannot evade them by reconstituting themselves into a different body or acting in different capacities.
  • The elements of civil contempt are: (i) the terms of the order; (ii) knowledge of those terms by the respondent; (iii) failure to comply; from which wilfulness and bad faith are inferred unless rebutted.

Court orders

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  1. 1.Appeal dismissed
  2. 2.Costs of the appeal awarded to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

HO
majority
JM
majority
JN
majority
On appeal from
High Court of Kenya, Bungoma
Judicial Review application; contempt Notice of Motion dated 1st March, 2018 (original JR orders issued in application dated 25th January, 2018)
Jurisdiction invoked
First appeal to the Court of Appeal against a High Court contempt ruling (contempt jurisdiction exercised by the court whose orders were allegedly disobeyed)

Relief refused

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Setting aside of the High Court contempt ruling and orders fining each appellant Kshs. 300,000.00

All elements of civil contempt were established and the appellants' defiance of the orders was deliberate

p. 12

Costs

The appeal was dismissed with costs to the respondent: "Accordingly, we are satisfied that this appeal lacks merit and we hereby dismiss it with costs to the respondent."

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the end, like the High Court Judge, we are persuaded that there was a specific High Court order (of 25th January, 2018); it covered the appellants among others; the appellants knew about the order; they acted in disobedience of it; and their disobedience was deliberate. In short, the appellants were in contempt of court as the learned Judge correctly found.
p. 12Finding of contempt and elements established
The upshot is that we find no basis for interfering with the ruling, and orders of the High Court. Accordingly, we are satisfied that this appeal lacks merit and we hereby dismiss it with costs to the respondent.
p. 12Final orders - disposition
It matters not whether the court had jurisdiction in the first place to issue them or not. As long as the orders were in existence and not set aside, they were for obeying.
p. 10Duty to obey subsisting orders notwithstanding a jurisdictional challenge
Once it had been shown that the appellants had knowledge of the court orders, their attempts to act as the Board of Nzoia Water Services Company Limited with a view to effectuating the very thing the court orders had stayed, cannot succeed.
p. 11Evasion of court orders through change of capacity or body
knowledge supersedes personal service and for good reason. The law cannot countenance a situation where a party who is fully aware of a court order is allowed to go around violating it simply because he was not personally served.
Knowledge versus personal service in contempt
Contempt of court is not merely a mechanism for the enforcement of court orders. The jurisdiction of the superior courts to commit recalcitrant litigants for contempt of court when they fail or refuse to obey court orders has at its heart the very effectiveness and legitimacy of the judicial system.
p. 9Rationale for contempt jurisdiction

Issues in the judgment

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minor

The judgment contains an internal inconsistency in the replying affidavit of the 1st respondent regarding the date of the Board meeting at which he was appointed Acting Managing Director - stated as 11th October, 2018 in one passage and 11th January, 2018 in another

minor

The judgment contains a date inconsistency regarding the extension of Mr. Kirui's contract - stated as 25th October, 2018 in one passage and 25th October, 2017 in another

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (11)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Wekesa & 2 others v Munialo (Civil Appeal 28 of 2019) [2025] KECA 679 (KLR)", Case Analysis (2025). First Appeal from Bungoma High Court contempt proceedings (Notice of Appeal dated 19th February, 2019; Memorandum of Appeal dated 21st February, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/679/eng@2025-04-11

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