Kelvin Kigen Kieti v Kilifi County Public Sevice Boa & another Interested Party Owen Yaa Baya [2015] KEELRC 440 (KLR)
The bottom line
#Kenya's employment court confirmed it can punish anyone, even non-parties, who knowingly disobeys its orders — Kilifi's County Secretary was cited for contempt.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Employment and Labour Relations Court to entertain contempt proceedings
The court has jurisdiction to punish for contempt, being of equal status with the High Court under Article 162(2)(a) of the Constitution, and the dispute falls within its employment and labour relations jurisdiction notwithstanding that the claimant was on secondment from the Public Service Commission.
Article 162(2)(a) and section 12 of the ELRCA confer jurisdiction over employment disputes; the claimant rendered employment services to the county government on secondment from the PSC, so the dispute is employment-related. Section 7(1) of the Sixth Schedule keeps existing laws in force with necessary adaptations, so 'High Court' under section 5 of the Judicature Act includes courts of equal status. Rule 31(2) of the ICPRs makes injunction orders enforceable under High Court rules, hence section 63(c) CPA and Order 40 rule 3 CPRs apply.
Whether a non-party can be cited for contempt of a court order
A non-party who has knowledge of a court order and wilfully or deliberately disobeys it can be cited and punished for contempt.
The court relied on judicial precedents cited by the claimant holding that court orders bind all persons who become aware of them, whether or not parties to the suit. The preliminary objection that the interested party, not being a party to the suit, could not be cited for contempt was found to have no merit.
Whether the amended notice of motion was incompetent for want of leave to amend
The failure to seek leave before filing the amended motion was excused in the interest of substantive justice under Article 159 of the Constitution, as no prejudice was demonstrated and the respondents were able to respond.
The court invoked its constitutional mandate under Article 159 to prioritize substantive justice over procedural technicalities. The respondents filed replying affidavits and preliminary objections on other grounds, showing no prejudice. The purpose of contempt proceedings is to protect the rule of law, which outweighs procedural compliance, so the persuasive Avanti decision was not applied.
Whether the interested party disobeyed the order of 12.6.2014
The interested party, Owen Yaa Baya, was found to have deliberately disobeyed the order of 12.6.2014 by sending the claimant on compulsory leave and directing him to hand over county assets while the status quo order was in force.
The letter of 16.6.2014 directing the claimant on 30 days leave and handover of assets was written after the interested party learned of the injunction order. As Head of Public Service he had no legal right to interfere with the officer's position after the court ordered status quo to be maintained. The court found his disobedience proved beyond reasonable doubt.
Whether the 2nd respondent disobeyed the order of 11.7.2014
The 2nd respondent was not cited for contempt because the claimant did not discharge the burden of proving he was at work or prevented from attending work on 12.8.2014, when the tender committee sat.
The contention that the claimant was absent on 12.8.2014 was not denied by affidavit. The burden lay on the claimant to prove his presence at work or that he was prevented from attending by the respondents. That burden was not discharged, and as deputy the 2nd respondent was legally permitted to act as tender committee secretary in the claimant's absence.
Legal principles established
#- A person with knowledge of a court order who wilfully or deliberately disobeys it may be cited and punished for contempt whether or not he is a party to the suit.
- The Employment and Labour Relations Court, having equal status with the High Court under Article 162 of the Constitution, has jurisdiction to punish for contempt under section 5 of the Judicature Act and section 63 of the Civil Procedure Act.
- Substantive justice prevails over procedural technicalities; a proposed contemnor should not escape on a mere defect in the form of the application.
- Obedience to court orders is a legal duty essential to the rule of law, and those who deliberately disobey court orders must be punished.
Court orders
#- 1.The amended notice of motion is partially allowed
- 2.The interested party, Mr. Owen Yaa Baya, is cited for contempt of the court's order dated 12.6.2014
- 3.The interested party is ordered to attend court personally on 12th October 2015 at 9.00 am to show cause why he should not be punished
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution and section 12 of the Employment and Labour Relations Court Act; section 5 of the Judicature Act and section 63(c) of the Civil Procedure Act read with section 7(1) of the Sixth Schedule to the Constitution and rule 31(2) of the Industrial Court Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kelvin Kigen Kieti v Kilifi County Public Sevice Boa & another Interested Party Owen Yaa Baya [2015] KEELRC 440 (KLR)", Case Analysis (2015). Amended Notice of Motion dated 4.9.2014 (in the main suit re: employment dispute, Industrial Court/Employment and Labour Relations Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/440/eng@2015-10-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.