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ELRCStruck OutMiscellaneous Application (Notice of Motion dated 11 September 2014, filed 24 September 2014)· [2014] KEELRC 1360 (KLR)

Anthony Muritu Njoroge v Commissioner Of Police & 2 others [2014] KEELRC 1360 (KLR)

Employment and Labour Relations Court
10 October 2014
RSRadido Stephen
638 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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You don't need the court's permission to sue someone for ignoring a court order in Kenya, but you must file the case in the original suit.

What this practically means

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Executive summary

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The applicant, Anthony Muritu Njoroge, moved the Employment and Labour Relations Court at Nakuru by Notice of Motion seeking leave to commence contempt proceedings against the respondents for failure to comply with an order of Ongaya J of 13 June 2014 in Nakuru Industrial Cause No. 32 of 2013, which directed that the applicant report to the Inspector General of Police for deployment on 16 June 2014 and be paid statutory benefits from 1 August 2013. Service of the order on the 1st Respondent's office on 16 June 2014 was evidenced by an affidavit of service. The applicant invoked section 5 of the Judicature Act, sections 1A, 1B and 3A of the Civil Procedure Act and Order 51(1) of the Civil Procedure Rules. The court held that the statutory basis for contempt is section 5 of the Judicature Act, which imports English contempt law as at the time of filing. The English Civil Procedure (Amendment No. 2) Rules 2012, replacing Order 52 of the Rules of the Supreme Court, require contempt applications to be made within the proceedings in which the breached order was made, and do not require leave where the complaint is breach of a court order. Following the Court of Appeal's decision in Christine Wangari Gachege v Elizabeth Wanjiru Evans, the court held that leave is unnecessary for such contempt applications. It further observed, for the record, that a contempt application must be filed in the underlying suit rather than by miscellaneous application or separate suit. The motion was therefore struck out as incompetent, with no order as to costs. Judgment was delivered in open court at Nakuru on 10 October 2014 by Radido Stephen, Judge.

Key legal issues

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01

Whether leave is required to commence contempt proceedings for breach of a court order

Holding

Leave is not required; the application was struck out as incompetent because it was brought as a miscellaneous application rather than in the underlying suit

Reasoning

The statutory basis for contempt is section 5 of the Judicature Act, which imports the English law on contempt as at the time of filing. The English Civil Procedure (Amendment No. 2) Rules 2012, in force from 1 October 2012, replaced Order 52 of the Rules of the Supreme Court and under Rule 81.4 a contempt application notice is made in the proceedings where the order was made, without leave. The Court of Appeal in Christine Wangari Gachege confirmed this. Hence the leave requirement fell away and the motion was incompetent.

p. 2

Legal principles established

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  • Leave of the court is not required to commence contempt proceedings where the complaint is breach of a court order or judgment
  • A contempt application must be filed in the suit in which the breached order was issued, not by miscellaneous application or separate suit

Court orders

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  1. 1.The Notice of Motion dated 11 September 2014 and filed in Court on 24 September 2014 is struck out
  2. 2.No order as to costs

Authorities

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Legislation

  • Judicature ActSection 5(1)
  • Civil Procedure ActSections 1A, 1B, 3A and 63(c)
  • Civil Procedure RulesOrder 51(1)
  • Civil Procedure (Amendment No. 2) Rules, 2012 (England and Wales)Rule 81.4
  • Rules of the Supreme Court (England)Order 52
  • Constitution of Kenya 2010 (repealed Constitution referred to)contempt provisions

Cases cited (1)

  • Christine Wangari Gachege v Elizabeth Wanjiru Evans & 11 others
    (2014) eKLR
Jurisdiction invoked
Section 5 of the Judicature Act; sections 1A, 1B and 3A of the Civil Procedure Act; Order 51(1) of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Anthony Muritu Njoroge v Commissioner Of Police & 2 others [2014] KEELRC 1360 (KLR)", Case Analysis (2014). Miscellaneous Application (Notice of Motion dated 11 September 2014, filed 24 September 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1360/eng@2014-10-10

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