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ELRCPartially AllowedCause No 1539 of 2013· [2014] KEELRC 1150 (KLR)

Professor Francis M. Njeru v Professor Mabel Imbuga [2014] KEELRC 1150 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
9 May 2014
MMM. Mbaru
6,249 words in judgment
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The bottom line

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Kenya's Industrial Court fined JKUAT's Vice Chancellor Kshs.500,000 for deliberately bypassing a court order protecting Prof. Njeru's job, proving no one is above court orders.

What this practically means

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Executive summary

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This was a ruling on two contempt-of-court applications dated 19th February 2014 and 16th April 2014 brought by the claimant, Prof. Francis Njeru, formerly Deputy Vice Chancellor (Administration, Planning and Development) of Jomo Kenyatta University of Agriculture and Technology, against the Vice Chancellor, Prof. Mabel Imbuga. The claimant alleged disobedience of two orders: that of 6th December 2013 directing payment of his salary, arrears and benefits during suspension, and that of 21st January 2014 restraining the respondent from recruiting anyone to fill his post. He sought committal of Prof. Imbuga to civil jail for six months. The respondent denied service of the orders, asserted compliance on salary payments (less contested allowances and mileage claims), and maintained that the two new DVC positions (Finance and Administration) advertised in February and April 2014 were creations of the University Council under its statutory mandate, distinct from the claimant's post. The court framed three issues: whether the respondent was guilty of contempt, whether the application was competent, and whether personal service was mandatory. Applying the criminal standard of proof and the requirement of service with penal notice endorsed, the court held service was sufficiently effected and knowledge demonstrated. It found no contempt regarding the 6th December 2013 order, as the unquantified benefits required proof at a full hearing. However, it found the respondent guilty of contempt of the 21st January 2014 order, having split and advertised the claimant's post in circumvention of the restraint instead of seeking its variation or discharge. The court fined the respondent Kshs.500,000, in default 30 days' civil imprisonment, ordered the contempt purged, and awarded costs to the claimant.

Key legal issues

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01

Standard of proof in contempt proceedings

Holding

Contempt must be satisfactorily proved beyond reasonable doubt, a standard higher than balance of probabilities but not beyond measurable doubt

Reasoning

Relying on Re Bramblevale Ltd and Mitika v Baharini Farm Ltd, the court held that contempt, being criminal in character, requires proof to the criminal standard; breach of the injunction must be proved beyond reasonable doubt with clear and unambiguous terms and proper notice.

p. 9
02

Whether personal service is mandatory

Holding

Personal service is a prerequisite, but service effected on the respondent's secretaries and legal office, with the respondent's demonstrated knowledge of the orders through her own affidavit, satisfied the requirement

Reasoning

The process server served the documents on the respondent's secretaries and personal assistant who acknowledged service on her behalf. The respondent's Replying Affidavit demonstrating awareness and purported compliance confirmed knowledge. Knowledge supersedes formal personal service for good reason, as in the authorities cited by the claimant.

p. 9
03

Whether the respondent disobeyed the order of 6th December 2013

Holding

No contempt found; unquantified allowances and expenses required proof and reimbursement claims under the employer's procedures, determinable at the full hearing

Reasoning

The order did not specify amounts. Salary arrears were paid. The contested allowances, mileage and utility expenses could only be assessed upon presentation of documents per the respondent's policy; adjudicating them in contempt proceedings where they were contested would be an injustice.

p. 9
04

Whether the respondent disobeyed the order of 21st January 2014 restraining recruitment to the claimant's post

Holding

Yes - the respondent, aware of the order, split the claimant's office and advertised two new DVC positions performing substantially the same functions, circumventing the order; contempt established

Reasoning

Comparing the advertisement of 7th February and 4th April 2014 with the claimant's contract and university statute, the advertised duties of DVC (Finance) and DVC (Administration) mirrored those of the claimant's office. Creating and advertising them while the restraint was in force was a circumvention ridiculing the order; the respondent should have sought variation or discharge instead.

p. 10

Legal principles established

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  • Contempt must be proved beyond reasonable doubt; it is an offence of criminal character
  • Personal service of the order, with a penal notice endorsed, is a prerequisite in contempt proceedings
  • Knowledge of a court order suffices; a party cannot circumvent an order by splitting the protected office or post; the remedy for an aggrieved party is to seek variation or discharge, not self-help
  • Committal to civil jail is a last resort where alternatives exist

Court orders

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  1. 1.The respondent, Professor Mabel Imbuga as the cited contemnor, to pay a fine of Kshs.500,000.00 for contempt of court or in default be committed to civil jail at Nairobi Women's Prison for thirty (30) days
  2. 2.The respondent Professor Mabel Imbuga to forthwith and with immediate effect purge the contempt of court
  3. 3.The costs of the application to be met by the respondent as the contemnor

Authorities

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Legislation

  • Judicature ActSection 5
  • Supreme Court Practice of EnglandOrder 52 Rule 3

Cases cited (8)

  • Mohamed versus Bakari & 2 Others
    2005 2 KLR
  • Refrigerator and Kitchen Utensils Ltd versus G. P. Shah and Others
    Civil Appeal No. 39 of 1990
  • Kenya Tea Growers Association versus Francis Atwoli & 5 Others
    Petition No. 64 of 2010
  • In Re Bramblevale Ltd
    [1969] 3 All ER 1062
  • Witham v Holloway
    (1995) 183 CLR 525
  • Ochino & Another versus Okombo & 4 Others
    [1989] KLR 165
  • Mitika versus Baharini Farm Ltd
    [1985] KLR 227
  • Dr. Ibrahim Haji Isaak versus Kenya Meat Commission and Another
    Industrial Cause No. 1052 of 2013
Jurisdiction invoked
Contempt jurisdiction under Section 5 of the Judicature Act and Order 52 Rule 3 of the Supreme Court Practice of England, invoked in a pending employment cause

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, "Professor Francis M. Njeru v Professor Mabel Imbuga [2014] KEELRC 1150 (KLR)", Case Analysis (2014). Cause No 1539 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1150/eng@2014-05-09

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