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ELRCOtherApplication dated 5.11.2014 (contempt application in Industrial Court suit)· [2014] KEELRC 1468 (KLR)

Antony Siyuyu Kisiang'ani & another v Nzoia Out-growers Company Limited & 4 others [2014] KEELRC 1468 (KLR)

Industrial Court of Kenya
3 December 2014
1,792 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court found three directors and their own lawyer guilty of contempt for holding a board meeting after a court order banned it.

What this practically means

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Executive summary

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The applicants brought a notice of motion dated 5 November 2014 under section 5 of the Judicature Act and Rule 31(2) of the Industrial Court Procedure Rules 2010, seeking the committal to civil jail for six months of Fredrick Ndala (suspended Acting General Manager), Albert Macho and Philemonah Bitonyake (directors) of the 1st respondent, for holding a Special Full Board Meeting on 6 November 2014 in breach of an ex parte injunction and status quo order issued on 15 October 2014 restraining meetings of the 1st respondent. The respondents opposed, arguing that no leave of the court had been sought before instituting contempt proceedings and that they had no knowledge of the order because their advocate never informed them and it was not served on them personally. The court framed four issues. On the first, relying on section 5 of the Judicature Act and the Court of Appeal's decision in Christine Wangari Gachege, it held that leave is no longer required before committal applications and found the application competent. On knowledge, it found the order was served on Sichangi & Co. Advocates on 16 October 2014 and counsel attended court when the status quo order was made, so the contemnors could not claim ignorance. The minutes of 6 November 2014 proved the meeting took place in wilful disregard of the order. The court found all three named persons guilty of contempt, and further found their advocate Mr. Sichangi equally guilty as an officer of the court who misadvised his clients and attended the meeting. The text concludes with the citation of the contemnors as guilty; no formal committal or costs order appears in the supplied text.

Key legal issues

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01

Whether leave of court is required before contempt proceedings

Holding

Leave is not required; the application is competent

Reasoning

The court applied section 5 of the Judicature Act importing English contempt law, and relied on the Court of Appeal's decision in Christine Wangari Gachege which found under the English Civil Procedure (Amendment No. 2) Rules 2012 that no leave is required for committal applications for breach of a court order. It accordingly rejected the respondents' argument that the proceedings were a non-starter.

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02

Whether the alleged contemnors had knowledge of the order

Holding

They had knowledge through service on their advocate and his attendance in court

Reasoning

The process server served the order on Sichangi & Co. Advocates on 16.10.2014. Counsel appeared in court on 27.10.2014 when the status quo order was made in his presence. As an officer of the court he knew of the orders, so the contemnors could not plead ignorance. The minutes of 6.11.2014 show the meeting went ahead with counsel present.

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03

Whether an act in contempt was committed

Holding

Yes - convening and holding the Special Full Board Meeting of 6.11.2014 breached the injunction and status quo orders

Reasoning

The minutes of 6.11.2014 signed by Christopher Sifuna and Fredrick Ndala proved the meeting took place after service of the order. This was in total disregard of the court order, was contemptuous, and all acts done against the order were declared null and void.

p. 3

Legal principles established

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  • Leave of court is no longer required before instituting committal for contempt proceedings
  • Court orders must be obeyed however unpalatable they may seem
  • A court order is a directive that must be complied with

Court orders

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  1. 1.Fredrick Ndala, Albert Macho and Philemonah Bitonyake cited as guilty of contempt of court
  2. 2.Counsel Mr. Sichangi declared equally guilty of contempt as an officer of the court

Authorities

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Legislation

  • Judicature ActSection 5(1)
  • Industrial Court Procedure Rules 2010Rule 31(2)
  • Civil Procedure (Amendment No. 2) Rules 2012 (England)Part 81, Rule 81.4

Cases cited (3)

  • Christine Wangari Gachege v Elizabeth Wanjiru Evans & 11 Others
    [2014] eKLR
  • Nelco Masanya Sagwe & Anor v County Secretary, Kisumu County & Others
    Petition No. 286/2014
  • Teachers Service Commission v The Kenya National Union of Teachers & 2 Others
    Nrb Ind. Court Pet. No. 23 of 2013
Jurisdiction invoked
Section 5 of the Judicature Act; Rule 31(2) of the Industrial Court (Procedure) Rules 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Antony Siyuyu Kisiang'ani & another v Nzoia Out-growers Company Limited & 4 others [2014] KEELRC 1468 (KLR)", Case Analysis (2014). Application dated 5.11.2014 (contempt application in Industrial Court suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1468/eng@2014-12-03

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