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ELRCPartially AllowedNot stated in the judgment (constitutional petition filed 31.10.2014)· [2014] KEELRC 1459 (KLR)

Nelco Masanya Sagwe & another v County Secretary, Kisumu County & 4 others [2014] KEELRC 1459 (KLR)

High Court of Kenya (Constitutional and Human Rights Jurisdiction)
26 November 2014
HWHellen S. Wasilwa
5,944 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court in Kisumu found two county officials guilty of contempt for defying court orders, but let off others because the applicants failed to prove who did what.

What this practically means

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Executive summary

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This is a ruling on a notice of motion dated 30th October 2014 in a constitutional petition by Nelco Masanya Sagwe and Peter Odero Anditi, the Interim Clerk and Assistant Clerk of the Kisumu County Assembly, who sought to cite eight parties for contempt of conservatory orders issued on 21st October 2014 restraining their removal from office. The applicants sought fines of Kshs 500,000 or six months' civil jail against each contemnor, orders compelling the 3rd and 4th respondents to vacate office, and an order of sequestration against certain named officers. The court framed five issues: service, knowledge, the relative weight of service and knowledge, proof of acts of contempt, and the orders to grant. It found that proper service was not proved on the County Secretary, Haggai Hawi Kadiri or the 5th respondent, but was proved on the 3rd and 4th respondents, the Assembly office and the 2nd interested party. Following the Court of Appeal's decision in the Wambora case, the court held that knowledge of an order suffices for contempt and that knowledge supersedes personal service. However, applying rule 81.10 of the English CPR, it held that each alleged act of contempt must be separately and numerically pleaded; the applicants had failed to do so. Only against the 3rd and 4th respondents, who continued occupying and acting in the offices of Clerk and Assistant Clerk in defiance of the order, was contempt proved. The application failed against all other intended contemnors, and the court directed all parties with knowledge of the order to obey it forthwith. The court also held that the County Assembly, as an entity, enjoys privilege under section 6 of Cap 6 while sitting and should not have been sued.

Key legal issues

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01

Whether the respondents were served with the orders of 21.10.2014

Holding

Service was proved on the 3rd and 4th respondents, the 2nd interested party and, via the Clerk's office, officers of the County Assembly; proper service on the County Secretary, Haggai Hawi Kadiri and the 5th respondent was not proved.

Reasoning

The process server's affidavit showed documents received at the County Secretary's office by an unidentified 'Patrick' and at the Clerk's office by one Grace, but did not explain the identity of the recipient or how the County Secretary and Kadiri were served. Defects in the affidavit meant proper service on those individuals was not established, though service on the Assembly office where the 3rd and 4th respondents worked was uncontested.

p. 8
02

Whether knowledge of an order supersedes personal service in contempt proceedings

Holding

Yes - following the Court of Appeal in Wambora's case, knowledge of an order is sufficient for contempt; personal service is no longer the test.

Reasoning

The court adopted the Court of Appeal's restatement of English CPR rules 81.10, 18.6 and 18.8, which permit dispensing with personal service where the person had notice of the order. The applicants submitted, and the interested party agreed, that the country has shifted from the requirement of personal service. The court accepted that all respondents who filed replying affidavits or instructed counsel had knowledge of the order.

p. 9
03

Whether specific acts of contempt were proved against each alleged contemnor

Holding

No - only the 3rd and 4th respondents were proved to have disobeyed the order by continuing to act as Clerk and Assistant Clerk; the application failed against all others.

Reasoning

The court held that contempt applications must identify each alleged act separately and numerically, supported by affidavit evidence. The petitioners omitted to state what each contemnor did or omitted. The only clear act was the 3rd and 4th respondents assuming and continuing in offices the court had ordered otherwise, and their replying affidavits attempted to justify their occupation, evidencing deliberate disobedience.

p. 10

Legal principles established

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  • In contempt proceedings, knowledge of a court order supersedes personal service of the order
  • A county assembly enjoys immunity from civil process while sitting under section 6 of the National Assembly Powers and Privileges Act (Cap 6), but individual officers are not protected for unwarranted acts outside Assembly proceedings
  • An affidavit of service must state the time and manner of service and identify the person served, per Order 5 rule 15

Court orders

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  1. 1.The application as against all intended contemnors other than the 3rd and 4th respondents is dismissed
  2. 2.The 3rd and 4th respondents (Eliud Owen Ojuok and Nicholas Steven Okola) are found guilty of contempt of court for deliberately disobeying the orders of 21.10.2014
  3. 3.All parties, having knowledge of the order of 21.10.2014, must forthwith obey the order as directed by the court

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 176
  • Constitution of Kenya, 2010Article 175
  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 23
  • Constitution of Kenya, 2010Article 117
  • Constitution of Kenya, 2010Article 232(1)(f)
  • County Governments Act, Act No. 17 of 2012Sections 12, 13, 17, 59, 60, 61, 62, 63, 64, 65, 66, 69(2), 72, 72(2)
  • National Assembly Powers and Privileges Act (Cap 6)Sections 4 and 6
  • Public Officer Ethics Act, 2003Sections 9(a), (b), 10 and 19
  • Constitution (Protection of Rights & Fundamental Freedom) Practice & Procedure Rules 2013Rules 23(1) and 24(1)
  • Civil Procedure RulesOrder 5 rule 15
  • Civil Procedure (Amendment No. 2) Rules 2012 (England and Wales)Rules 81.10, 18.6 and 18.8

Cases cited (6)

  • Ibrahim Hajj Issa v Kenya Meat Commission
  • Justin Kariuki Mate & Anor v Martin Nyaga Wambora
    [2014] eKLR
  • Dorothy K. Kwonyike T/A Luguyan Enterprises v Victoria Commercial Bank
    Court of Appeal Case No. 79/2000
  • John Mugo Gachuki v Nyamakima Co-op Ltd
  • Diana Kethi Kilonzo v IEBC
    Pet. No. 359/2013
  • Justus Nyaribo v Clerk Nyamira Assembly
Jurisdiction invoked
Article 23 of the Constitution of Kenya, 2010 (read with the Constitution (Protection of Rights & Fundamental Freedoms) Practice & Procedure Rules 2013, rules 23(1) and 24(1))

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, "Nelco Masanya Sagwe & another v County Secretary, Kisumu County & 4 others [2014] KEELRC 1459 (KLR)", Case Analysis (2014). Not stated in the judgment (constitutional petition filed 31.10.2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1459/eng@2014-11-26

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