Kisii University Council v Kenya Union of Domestic Workers, Hotels, Educational Institutions and Hospital Workers (KUDHEIHA) (Civil Appeal E114 of 2021) [2026] KECA 1457 (KLR)
The bottom line
#Kenya's Court of Appeal overturned a contempt ruling against Kisii University, confirming contempt charges require near-criminal proof and that only orders actually covering an act can be breached.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the respondent proved to the requisite standard that the appellant committed contempt of the order of 28th October 2020
- 2.Whether the order of 28th October 2020, which stayed the letter dated 1st October 2020 to individual employees, also barred implementation of the redundancy notice dated 30th September 2020
- 3.Whether the learned judge erred in failing to apply the required standard of proof and the relevant precedents on Section 40(1)(a) of the Employment Act
Key legal issues
#Standard of proof in contempt proceedings
Contempt being quasi-criminal, proof must exceed the balance of probabilities, almost but not exactly beyond reasonable doubt.
The court adopted Mutitika vs. Baharini Farm Ltd, emphasising that contempt may result in imprisonment, placing it in the realm of criminal character, and requiring strict proof before a party is charged and convicted for disobeying a court order.
Scope of the order of 28th October 2020
The order stayed only the letter dated 1st October 2020 to individual employees; it did not stop the redundancy notice dated 30th September 2020, which the respondent never challenged.
The order of 28th October 2020 was directed at the letter of 1st October 2020 to individual employees. The redundancy notice dated 30th September 2020, served on the union under Section 40(1)(a) of the Employment Act, was acknowledged but not contested and ran its course; the contempt finding therefore had no factual or legal foundation.
Elements to be proved before a contempt finding
The order must be clear and unambiguous, brought to the notice of the charged party with the consequences of breach (penal notice), and knowing and willful disobedience must be shown.
Because the liberty of the citizen is often at stake in contempt proceedings, strict proof of each element is required. On the facts, the breach of a clear order by the appellant was not established to that standard, so the ELRC's finding of direct and blatant contempt could not stand.
Legal principles established
#- Contempt of court is quasi-criminal and requires a standard of proof higher than the balance of probabilities, approaching but not reaching the criminal beyond-reasonable-doubt standard
- Before a party is committed for contempt it must be strictly proved that the order was clear and unambiguous, was brought to the party's notice (with a penal notice) and was knowingly and willfully disobeyed
Court orders
#- 1.Set aside that part of the ruling of the ELRC dated 16th November 2021 allowing the respondent's application dated 6th May 2021
- 2.Dismiss the respondent's application dated 6th May 2021 with costs to the appellant
- 3.The appellant to have the costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court, Nakuru
- Nakuru ELRC No. E013 of 2021 (ruling); underlying Cause No. E013 of 2020
- Jurisdiction invoked
- Not expressly stated in the judgment; the appeal lies to the Court of Appeal from the ELRC under Article 164 of the Constitution (the judgment does not invoke a specific provision).
Relief refused
#Commitment of the Vice Chancellor Kisii University to civil jail for six months / sentencing for contempt
The finding of contempt was not merited as the order breached was not established to the required standard and did not cover the redundancy notice
Costs
The respondent's application dated 6th May 2021 dismissed with costs to the appellant; the appellant shall have the costs of the appeal.
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.
In the upshot, we find that the appellant’s appeal is merited and allow it. We set aside that part of the ruling of the ELRC dated 16th November, 2022 allowing the respondent’s application dated 6th May, 2021 and dismiss the said application with costs to the appellant. Orders accordingly. The Appellant shall have the costs of the appeal.
Contempt of court is quasi-criminal in nature requiring proof well above the balance of probabilities which is the standard of proof in civil cases and approaching the beyond reasonable doubt standard in criminal cases.
The order of 28th October, 2020 did not stop the implementation of the redundancy notice dated 30th September, 2020.
Hence the requirement for strict proof that; the order alleged to be breached was clear and unambiguous in its terms requiring a party to either do or refrain from doing something
Issues in the judgment
#The judgment states the ruling under appeal was delivered on 16th November 2021, but in the final orders refers to a ruling 'dated 16th November, 2022' - an internal inconsistency in dates.
The appellant's written submissions are dated 22nd May, 2026 for an appeal whose memorandum is dated 14th December 2021; the hearing date of 25th May, 2026 is likewise unusually distant from the ruling under appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kisii University Council v Kenya Union of Domestic Workers, Hotels, Educational Institutions and Hospital Workers (KUDHEIHA) (Civil Appeal E114 of 2021) [2026] KECA 1457 (KLR)", Case Analysis (2026). Appeal from Nakuru ELRC No. E013 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1457/eng@2026-07-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.