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ELRCDismissedNotice of Motion Application dated 16th June 2015· [2015] KEELRC 423 (KLR)

Union of Kenya Civil Servants v Cabinet Secretary Ministry of Health & 3 others [2015] KEELRC 423 (KLR)

Employment and Labour Relations Court
3 August 2015
NMNzioki wa Makau
987 words in judgment
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The bottom line

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A Kenyan court refused to punish officials for ignoring an order because they eventually complied — but warned that obeying court orders is never optional.

What this practically means

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Executive summary

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The Claimant/Applicant, through a Notice of Motion dated 16th June 2015, sought to have the 1st, 2nd and 3rd Respondents cited for contempt for disobeying a court order issued on 27th May 2015 which required reversal of transfer/posting orders dated 20th March 2015. The 1st, 2nd and 4th Respondents, through a replying affidavit of Cabinet Secretary James Macharia, asserted that he was never personally served, became aware of the order on 12th June 2015, and that compliance letters were issued; the 3rd Respondent filed grounds of opposition contending the application was defective, that the extracted order omitted the 14-day duration clause, and that the aggrieved parties had been reinstated. Counsel for the applicant relied on authorities including Shimmers Plaza v National Bank of Kenya, submitting the compliance letters were backdated in reaction to the contempt application. The court reiterated that court orders are commands and obedience is mandatory, quoting the Court of Appeal in Shimmers Plaza. However, holding that the Respondents had complied, albeit with delay, and that such obedience amounted to a purging of the contempt, the judge declined to cite any Respondent for contempt. The court directed the parties to fix the substantive motion for hearing before another court, as the judge could not hear it due to official engagements. Judgment delivered at Nairobi on 3rd August 2015 by Nzioki wa Makau J.

Key legal issues

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01

Whether disobedience of a court order that is subsequently complied with (albeit late) warrants committal for contempt

Holding

No - the delayed obedience constituted a purging of the contempt, so no orders of committal were made

Reasoning

The court found that the Respondents reacted to the order circa the time the contempt application was filed, with the applicant alleging the compliance letters were backdated. Nonetheless, the court held that obedience, even delayed, purged the contempt. Exercising discretion, the judge declined to cite the Respondents for contempt and directed the parties to fix the substantive motion before another court due to the judge's official engagements.

p. 3

Legal principles established

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  • Court orders must be obeyed; obedience of court orders is mandatory and not optional.
  • No leave is required to commence contempt proceedings unless one is proceeding under the Judicature Act (as held in Shimmers Plaza v National Bank of Kenya Limited).
  • Delayed compliance with a court order amounts to purging of the contempt, which may excuse committal.
  • Courts will not hesitate to punish contempt where circumstances reveal it, regardless of who the contemnor is.

Court orders

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  1. 1.The court will not issue any orders in relation to the alleged contempt, the Respondents having complied though belatedly
  2. 2.Parties directed to fix the substantive motion for hearing before any other court, the judge being unable to hear it due to official engagements

Authorities

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Legislation

  • Judicature Act

Cases cited (4)

  • CBA v Ndirangu
    [1992] KLR 30
  • Director of Pensions v Abdul Majid Cockar
    [1999] eKLR
  • Shimmers Plaza Limited v National Bank of Kenya Limited
    [2015] eKLR
  • Christine Wangari v Elizabeth Wanjiru Evans & 11 others
Jurisdiction invoked
Inherent contempt jurisdiction of the High Court-equivalent superior court; application for committal for disobeying court orders issued 27th May 2015

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, "Union of Kenya Civil Servants v Cabinet Secretary Ministry of Health & 3 others [2015] KEELRC 423 (KLR)", Case Analysis (2015). Notice of Motion Application dated 16th June 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/423/eng@2015-08-03

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