Geoffrey Makana Asanyo v Nakuru Water and Sanitation Services Company & 7 others [2014] KEELRC 1175 (KLR)
The bottom line
#Kenya's Industrial Court can punish contempt, but this application failed because the applicant could not prove the respondent was formally served with the court order.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Industrial Court to punish for contempt under section 5 of the Judicature Act
The Industrial Court, as a superior court under Article 162, is vested with jurisdiction under section 5 of the Judicature Act; the preliminary objection fails
The Judicature Act does not define 'High Court'; its definitions referenced the former Constitution. Reading section 5 as confined to courts under the former Constitution would render it vestigial and produce absurd outcomes. Section 7(1) of the Sixth Schedule requires existing law to be construed with adaptations to conform with the 2010 Constitution, so section 5 extends to all superior courts including the Industrial Court and the Land and Environment Court.
Whether the respondent was aware of, and served with, the orders he allegedly disobeyed
The respondent could not be held in contempt because the applicant failed to show service of the order with a penal notice
The respondent acknowledged learning of the orders through his advocates, but the affidavits did not show when or how, and no affidavit proved service. Authorities relied on by the respondent (Victoria Pumps, Abdiwahab Abdullahi Ali, Johnstone Khejeli) establish that service of the order and penal notice is mandatory in contempt proceedings. Without proof of service and awareness, contempt cannot be established.
Whether the petitioner should have been barred from being heard for alleged contempt (Hadkinson)
No bar; the alleged disobedience would constitute a fresh cause of action and no impediment was established
The respondent argued under Hadkinson v Hadkinson that the petitioner's alleged disobedience impeded the judgment's implementation. The court held the alleged actions would constitute a fresh cause of action and no impediment to the course of justice was established, so the petitioner could properly be heard in the contempt proceedings.
Legal principles established
#- Section 5 of the Judicature Act is to be interpreted to enable all superior courts established under the Constitution of Kenya, 2010, including the Industrial Court, to punish for contempt
- Service of a court order with a penal notice is mandatory before a party may be punished for contempt
- Until a court order is set aside on review or appeal, it is valid and binding, and advocates must advise clients to respect court orders
- Alleged disobedience not established as an impediment to justice does not bar a party from being heard under the Hadkinson principle
Court orders
#- 1.The contempt application filed on 20.06.2014 is dismissed
- 2.The preliminary objection filed on 07.07.2014 is dismissed
- 3.The cited respondent and the ex parte applicant shall each bear their own costs of the application and the preliminary objection
- Jurisdiction invoked
- Section 5 of the Judicature Act Cap 8 as read with Article 162 of the Constitution of Kenya, 2010 and section 7(1) of the Transitional and Consequential Provisions in the Sixth Schedule
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Geoffrey Makana Asanyo v Nakuru Water and Sanitation Services Company & 7 others [2014] KEELRC 1175 (KLR)", Case Analysis (2014). Contempt Application filed on 20.06.2014 in Nakuru Industrial Court Petition No. 4 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1175/eng@2014-07-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.