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ELRCPartially AllowedNot stated in the judgment (Employment and Labour Relations Court cause; application dated 5th August, 2013)· [2013] KEELRC 106 (KLR)

Ibrahim Haji Issak v Kenya Meat Commission & another [2013] KEELRC 106 (KLR)

Industrial Court (Industrial Court of Kenya)
9 October 2013
DMD.K. Njagi Marete
4,922 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Industrial Court fined Kenya Meat Commission Kshs.10 million and jailed its acting CEO for defying court orders, confirming that knowing about a court order is enough to punish disobedience.

What this practically means

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Executive summary

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This was an application dated 5th August, 2013 by Dr. Ibrahim Haji Issak, the Claimant/Applicant, seeking committal to civil jail of the Kenya Meat Commission and James Tendwa for disobedience of court orders issued on 12th July, 2013, which stayed the claimant's suspension and stayed the appointment of James Tendwa to act as Managing Commissioner/Chief Executive Officer. The applicant sought a fine of Kshs.10,000,000 against the Commission, committal of Tendwa for six months, his removal from office, the claimant's reinstatement to access and duties, payment of outstanding salary and benefits, and restraining orders. The respondents opposed, arguing the application was defective, the orders were never personally served on the respondents, no penal notice was served, the claimant came with unclean hands, and guilt was not proved beyond reasonable doubt. The court framed four issues: whether the respondents were guilty of contempt, whether the application was competent, whether personal service was mandatory, and whether a penal notice was required. Relying on Teachers Service Commission v KNUT and other authorities, the court held that personal service is the general rule in quasi-criminal contempt proceedings but that knowledge of the order supersedes personal service where a party clearly acts with knowledge of it. The respondents' participation in the proceedings and settlement negotiations demonstrated awareness, so their non-compliance was willful defiance. The court found both respondents guilty of contempt, fined the Commission Kshs.10,000,000 (with attachment and sale of assets in default), committed Tendwa to civil jail for 90 days or a Kshs.2,000,000 fine in the alternative, ordered him to vacate office, ordered the claimant's reinstatement and payment of outstanding salary and benefits, directed the respondents to purge the contempt, and awarded costs to the claimant.

Key legal issues

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01

Whether the Respondent/Contemnors are guilty of contempt of court

Holding

Yes. The respondents were aware of the orders of 12th July, 2013 through service and the court proceedings, and their continued disobedience was willful defiance.

Reasoning

The court found that the respondents were served with the orders through the Company Secretary, entered appearance through advocates, filed a replying affidavit, and participated in proceedings and settlement negotiations, all of which demonstrated awareness of the orders. Their continued denial of the claimant access to office, continued occupation of office by James Tendwa, and the press statement that the claimant remained suspended amounted to willful defiance that could not be sustained.

p. 9
02

Whether personal service on the Respondent/Contemnors is mandatory

Holding

Personal service is the general rule in contempt proceedings, but knowledge of the order supersedes the requirement where a party clearly acts with knowledge of the order.

Reasoning

Relying on Halsbury's Laws of England, the England Supreme Court Practice Rules and the decision in Basil Criticos v Attorney General, the court noted the words 'general rule' and 'normally' are instructive: personal service is normally required in quasi-criminal contempt proceedings, but where a party barricades himself or acts in a way demonstrating knowledge of the order, lack of personal service does not nullify a competent committal application.

p. 8
03

Whether the respondents ought to have been served with a Penal Notice before institution of contempt proceedings

Holding

The failure to serve a penal notice crumbled in the face of demonstrated knowledge and willful defiance of the orders.

Reasoning

The respondents argued the application was incompetent for want of a penal notice and personal service. The court held these objections 'crumble on the wayside' because the respondents, through service and their conduct in the proceedings including seeking leave to negotiate settlement on condition the orders be executed, were always aware of the orders. Non-compliance was therefore willful defiance.

p. 9
04

Whether the application for committal is competent

Holding

Yes. The application complied with the law on contempt proceedings under section 5(1) of the Judicature Act, Chapter 8, Laws of Kenya.

Reasoning

The applicant submitted and the court accepted that the application complied with section 5(1) of the Judicature Act, which confers the same power to punish for contempt as possessed by the High Court of Justice in England, extending to upholding the authority and dignity of subordinate courts. The court applied the jurisprudence in Teachers Service Commission v KNUT on the purposes and procedure of contempt proceedings.

p. 7

Legal principles established

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  • Knowledge of a court order supersedes the requirement of personal service; where a party acts with knowledge of an order, lack of personal service does not nullify a committal application
  • It is an unqualified obligation of every person against whom a court order is made to obey it unless and until it is discharged, even where the person believes the order to be irregular or void
  • A person who, knowing of an injunction or order of stay, willfully does something or causes others to do something to break it is liable to be committed for contempt of court

Court orders

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  1. 1.The 1st respondent/contemnor, Kenya Meat Commission, to pay a fine of Kshs.10,000,000.00 for contempt of court
  2. 2.In default of payment of the fine, the movable and immovable assets of the 1st respondent including but not limited to land and buildings to be attached and sold in satisfaction of the penalty for contempt of court
  3. 3.The 2nd respondent/contemnor, James Tendwa, to be committed to civil jail at Industrial Area Prison for ninety (90) days or in the alternative pay a fine of Kshs.2,000,000.00 for contempt of court
  4. 4.The 2nd respondent/contemnor to forthwith vacate the office of the Managing Commissioner/Chief Executive Officer of the 1st respondent with immediate effect
  5. 5.The 1st respondent/contemnor to immediately and unconditionally allow and facilitate the claimant/applicant's access and resumption of office and duties as Managing Commissioner/Chief Executive Officer
  6. 6.The 1st respondent/contemnor to pay the claimant/applicant all his outstanding salary and benefits with immediate effect
  7. 7.The respondents/contemnors to forthwith and with immediate effect purge the contempt of court
  8. 8.Costs of the application to be borne by the respondents/contemnors

Authorities

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Legislation

  • Judicature Act, Chapter 8, Laws of Kenyasection 5(1)
  • Constitution of KenyaArticle 232(1)(f)
  • Public Officer Ethics Act, 2003Sections 9(a), (b), 10 and 19
  • England Supreme Court Practice RulesOrder 52 Rule 3(1)

Cases cited (8)

  • Teachers Service Commission Versus Kenya National Union of Teachers, Wilson Sossion and Mudzo Nzili
    Industrial Court of Kenya Petition Cause No. 23 of 2013 (unreported)
  • Johnson vs Grant
    1923 SC 789
  • Kenya Tea Growers Association Vs Francis Atwoli and 5 Others
    [2012] eKLR
  • Clarke and Others Vs Chadburn & Others
    [1985] 1 All E.R (PC), 211
  • Econet Wireless Ltd Vs Minister for Information & Communication of Kenya & Another
    [2005] eKLR
  • Gubabchand Popatial Shah & Another
    Civil Application No. 39 of 1990 (unreported)
  • Hadkinson v Hadkinson
    (1952) 2 All ER 567
  • Basil Criticos vs Attorney General and 8 Others
    [2012] eKLR
Jurisdiction invoked
Contempt jurisdiction under section 5(1) of the Judicature Act, Chapter 8, Laws of Kenya

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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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, "Ibrahim Haji Issak v Kenya Meat Commission & another [2013] KEELRC 106 (KLR)", Case Analysis (2013). Not stated in the judgment (Employment and Labour Relations Court cause; application dated 5th August, 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/106/eng@2013-10-09

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