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ELRCDismissedNot stated in judgment· [2013] KEELRC 429 (KLR)

CHRISPINUS NGAYO MUSUNDI V ATTORNEY GENERAL & ANOTHER [2013] KEELRC 429 (KLR)

Industrial Court of Kenya
2 April 2013
MOMaureen Onyango
997 words in judgment
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The bottom line

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Kenya's Industrial Court dismissed a contempt application because the officials were never personally served with the order and penal notice, confirming strict procedural requirements.

What this practically means

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Executive summary

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This was a contempt application by Notice of Motion dated 2nd May 2012 arising out of an Industrial Court award of 1st July 2011 by Justice Isaac E.K. Mukunya sitting with Mr. Nashon N. Udoto and Mr. J.M. Kilonzo, by which the Claimant was awarded Shs.875,235, a monthly pension of Shs.8,972 and three months' salary as compensation. The Claimant, alleging non-implementation of the decree despite service of documents at Sheria House on 21st September 2011, sought orders summoning the Attorney General, the Permanent Secretary Ministry of Finance and the Secretary to the Public Service Commission to show cause why they should not be punished for contempt, a declaration of contempt with punishment including detention, and costs against the 1st and 2nd Respondents. In a replying affidavit, the Secretary of the Public Service Commission deponed that the Attorney General had instructions to appeal, that certified proceedings had been sought, that she had not been personally served with any order or penal notice, and that no certificate of order against the Government under the Government Proceedings Act had been issued. Justice Maureen Onyango noted that an appeal had been filed in the Court of Appeal and a temporary stay of execution granted, so the application may have been overtaken by events. On the law, she held contempt proceedings are quasi-criminal: the contemnor must be named and personally served with a penal notice. The Permanent Secretary, Ministry of Finance was neither a party nor served, and his name was undisclosed. The Claimant also failed to attach the decree or certificate of order or prove service. The application was dismissed with each party bearing its own costs, the judgment being read in open Court and signed on 2nd April 2013.

Key legal issues

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01

Requirements for instituting contempt proceedings

Holding

Contempt proceedings are quasi-criminal and require the contemnor to be named and personally served with a penal notice; orders cannot issue against an unnamed, unserved officer

Reasoning

The Court characterised contempt as quasi-criminal, importing strict compliance with procedural safeguards. The three persons named were identified only in their official capacities; the Permanent Secretary, Ministry of Finance was not a party and was not served. The Court therefore held the application procedurally defective and incapable of supporting the prayers sought.

p. 2
02

Evidential burden on the applicant in contempt/execution

Holding

The applicant failed to prove extraction and service of the decree and certificate of order against the Government

Reasoning

The Court noted that although the Claimant alleged that a decree and certificate of order against the Government had been extracted and served, neither document was attached to the application nor was there evidence of service on the 1st and 2nd Respondents. The Respondent denied service, and the Court found the Claimant's efforts insufficient, resting dismissal on failure of proof.

p. 2
03

Effect of intervening events on the contempt application

Holding

The filing of an appeal, supply of proceedings and a temporary stay of execution meant the application may have been overtaken by events

Reasoning

The Court observed that the Attorney General filed a Notice of Appeal six days after the award, obtained proceedings and judgment, filed an appeal in the Court of Appeal, and secured temporary stay of execution on 4th December 2012. These changed circumstances meant the contempt application may have been overtaken by events, though the Court dismissed it on procedural and evidential grounds regardless.

p. 2

Legal principles established

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  • A contemnor must be named and personally served with documents containing a penal notice before contempt proceedings can be instituted
  • The Court cannot make orders against an officer whose name is not disclosed and who has not been served with the application

Court orders

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  1. 1.The Notice of Motion dated 2nd May 2012 is dismissed
  2. 2.Each party shall bear its own costs

Authorities

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Legislation

  • Industrial Court Act 2011Sections 3(1)(2)(3), 4(2), 12(3)(iii), (viii), 12(4), 13
  • Supreme Court of England Practice and Procedure of RulesOrder 52 Rule 2(3)
  • Judicature ActSection 5(1)
  • Government Proceedings Actcertificate of order for payment of money by Government
Jurisdiction invoked
Industrial Court Act 2011, Sections 3(1)(2)(3), 4(2), 12(3)(iii), (viii), 12(4) and 13; Order 52 Rule 2(3) of the Supreme Court of England Practice and Procedure Rules; Section 5(1) of the Judicature Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "CHRISPINUS NGAYO MUSUNDI V ATTORNEY GENERAL & ANOTHER [2013] KEELRC 429 (KLR)", Case Analysis (2013). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/429/eng@2013-04-02

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