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ELRCDismissedApplication dated 27th August 2014 (Notice of Motion)· [2015] KEELRC 281 (KLR)

Francis M. Njeruh v Mabel Imbuga & 9 others [2015] KEELRC 281 (KLR)

Employment and Labour Relations Court
2 November 2015
MNMathews Nderi Nduma
1,988 words in judgment
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The bottom line

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Kenya's Employment Court dismissed a contempt bid against JKUAT officials, confirming contempt requires a subsisting court order and proof beyond reasonable doubt.

What this practically means

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Executive summary

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The Claimant/Applicant sought leave, granted on 27th August 2014, to institute contempt proceedings against Prof. Mabel Imbuga and nine other officers of Jomo Kenyatta University of Agriculture and Technology, seeking their committal to civil jail for six months, compliance with orders of 21st January 2014 and 9th May 2014, a declaration that recruitment proceedings of 17th July 2014 were null and void, and an injunction restraining recruitment to the posts of Deputy Vice Chancellor (Finance) and Deputy Vice Chancellor (Administration). The Applicant alleged that the Respondents defied interim orders restraining recruitment, leading to a prior committal order of 9th May 2014 against Prof. Imbuga, who paid a Kshs.500,000 fine but allegedly failed to purge the contempt, and that interviews were nonetheless held on 17th July 2014. The Respondents, through Dr. Ekuru Aukot, Chairman of Council, denied contempt, asserting that the interim orders were discharged by the ruling of Nduma J on 28th March 2014, that the splitting of the office occurred thereafter, and that contempt could not rest on a lapsed order. The Court framed three issues: defiance, service, and remedy. It held that contempt proceedings are criminal and require proof beyond reasonable doubt; that the Respondents did not intentionally defy the orders; that the interviews occurred after the orders were discharged; and that the earlier contempt finding over the February 2014 advertisement was res judicata. Relying on Johnson v Gret and Diasta Investments, the Court dismissed the application with costs, noting remaining remedies would be available at the hearing of the main suit.

Key legal issues

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01

Whether the Respondents intentionally acted in defiance of the interim orders of 21st January 2014

Holding

No. The advertisement of 7th February 2014 occurred while orders subsisted but the interviews and fillings occurred only after the orders were discharged on 28th March 2014, and no intention to defeat the orders was demonstrated.

Reasoning

The Court found the interim orders were set aside by the ruling of 28th March 2014. Although the advertisement of the Deputy Vice Chancellor (Finance) post fell within the pendency of the orders, no evidence showed steps taken to fill the protected position while the orders subsisted. Intent to defeat the orders was not proved to the criminal standard.

p. 5
02

Whether subsequent recruitment of 17th July 2014 violated the court orders

Holding

No. The orders of 21st January 2014 were no longer in force when the interviews were conducted, and the contempt over the 7th February 2014 advertisement had already been determined and punished, making the matter res judicata.

Reasoning

The Court held the initial contempt finding and punishment by Mbaru J on 9th May 2014 concerned the February advertisement; the later recruitment could not be re-litigated as contempt of the discharged orders. Following Diasta Investments, contempt cannot lie on a non-subsisting order.

p. 5
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Standard of proof and nature of contempt proceedings

Holding

Contempt proceedings are criminal in nature, requiring proof beyond reasonable doubt, which the Applicant failed to discharge.

Reasoning

Because contempt carries criminal sanctions, the Applicant bore the burden of proving intentional defiance beyond reasonable doubt. The Court found the Applicant failed to demonstrate that the Respondents acted with intention to defeat the interim orders, and accordingly answered the first issue in the negative.

p. 4

Legal principles established

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  • Contempt proceedings are criminal in nature and the standard of proof is beyond reasonable doubt
  • Courts punish contempt to safeguard the rule of law, not the personal dignity of the judiciary
  • Contempt applications cannot be founded on orders that have been discharged or lapsed; there must be a subsisting order

Court orders

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  1. 1.The Application dated 27th August 2014 is dismissed
  2. 2.Costs of the application awarded to the Respondents

Authorities

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Cases cited (3)

  • Johnson –vs- Gret
    1923 SC 787
  • Teachers Service Commission –vs- Kenya National Union of Teachers and 2 others
    [201] eKLR
  • Diasta Investments Limited –vs- Nitesh Devan Kiara Shah & 4 others
    [2014] eKLR
Jurisdiction invoked
Inherent contempt jurisdiction of the Employment and Labour Relations Court (application for leave to apply for committal for contempt of court orders of 21st January 2014 and 9th May 2014)

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, "Francis M. Njeruh v Mabel Imbuga & 9 others [2015] KEELRC 281 (KLR)", Case Analysis (2015). Application dated 27th August 2014 (Notice of Motion). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/281/eng@2015-11-02

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