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ELRCPartially AllowedApplication dated 16th September, 2013 (Contempt Application in Memorandum of Claim)· [2015] KEELRC 552 (KLR)

Mwaniki Silas Ngari v John S. Akama & another [2015] KEELRC 552 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
20 August 2015
5,088 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 confirmed that knowing about a court order is enough to hold you in contempt, even without personal service.

What this practically means

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Executive summary

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The Applicant, former Deputy Principal (Academic Affairs) of Kisii University, brought a contempt application under Section 5 of the Judicature Act and Order 52 Rule 3 of the Supreme Court Practice of England seeking that Prof. John Akama and Dr. Eng. S. Mwarania be committed to jail for six months for disobeying an order of 29th August 2013 restraining the Respondent from constructively and unlawfully dismissing him from his office. He listed nine acts of contempt, including denial of transport, refusal to allocate an office and duties, exclusion from a Council meeting, forced leave, backdated letters, and withholding of a telephone allowance. The Respondents opposed, arguing there was no personal service of the order, that the office of Deputy Principal had ceased to exist upon the coming into force of the Universities Act 2012, and that the Applicant had misled the court. Wasilwa J held that knowledge of a court order supersedes personal service in contempt proceedings, applying the Court of Appeal's decision in Wambora, and found the Respondents had knowledge of the order through email service. On the transition provisions, the court held the Applicant's appointment was saved by Section 76 of the Universities Act and by Section 23(3)(c) of Cap 2, so the Respondents' interpretation that the office had become obsolete was erroneous. The court found the Respondents guilty of contempt for denying the Applicant access to his office and work, though the failure to provide a driver was not contempt. The judgment, read in open court on 20th August 2015, records the finding of guilt but sets out no formal sentencing or costs order.

Key legal issues

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01

Service of contempt orders - whether email service suffices

Holding

Knowledge of a court order supersedes personal service in contempt proceedings; the Respondents had knowledge through email service which they did not deny.

Reasoning

The court traced the shift from the traditional requirement of personal service, citing J.Z. Ochino and the English CPR Rule 81.10, and relied on the Court of Appeal decision in Justice Kariuki Mate & Another v Martin Nyaga Wambora, which held that the law has changed and that knowledge of an order suffices where a person is notified of its terms by telephone, email or otherwise. The process server's affidavit also showed attempted personal service was evaded.

p. 7
02

Whether the office of Deputy Principal Academic Affairs ceased to exist under the Universities Act 2012

Holding

The Applicant's appointment was saved by the transition provisions of the Universities Act (Section 76) for the remainder of his contract term, and rights accrued under the repealed law survived.

Reasoning

The court read Section 76 of the Universities Act as saving the Applicant's appointment for the remaining term, noted Section 81(1) saving acts and appointments made under repealed laws, and invoked Section 23(3)(c) of Cap 2 (Interpretation and General Provisions Act) to hold that a repeal does not affect rights acquired under the repealed law. The erroneous view that the office was obsolete did not justify disobeying the order.

p. 9
03

Whether the Respondents committed punishable acts of contempt

Holding

The Respondents were guilty of contempt by denying the Applicant access to his office and refusing to allocate him work after service of the order, but the failure to provide transport was not contempt.

Reasoning

The court found the chauffeur-driven car claim unproved because the Applicant did not show the Respondent controlled the driver or prevented the pick-up. However, denying office access and work after the order breached the injunction; payment of salary alone did not put the Applicant in the position the court ordered. Reliance on Kerr on Injunction and Stancmb v Trowbrudge UDC established that breach of an injunction is punishable regardless of intention.

p. 10
04

Whether contempt must be punished despite the allegation that the Applicant misled the court

Holding

Contempt must be punished; a party dissatisfied with an order should obey it and challenge it later rather than defy it.

Reasoning

Citing Johnson v Grant and Teachers Service Commission v KNUT, the court held that contempt challenges the supremacy of law, not judicial dignity, and that defiance is not an option even if the order was allegedly obtained on misleading material. Compliance is mandatory while the order exists, however erroneously obtained.

p. 10

Legal principles established

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  • Where there is knowledge of a court order, knowledge supersedes personal service in contempt proceedings.
  • A party who believes a court order was wrongly obtained must obey it first and challenge it later through proper channels; disobeying the order on the basis that the applicant misled the court is not an option.
  • A repealed statute does not extinguish rights accrued under it; transition clauses save appointments made under repealed laws.
  • Failure to comply with an injunction cannot be excused by showing there was no direct intention to disobey the order.

Court orders

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  1. 1.Finding that the Respondents, Prof. John Akama and Dr. Eng. S. Mwarania, are guilty of contempt of the court order of 29th August 2013 by denying the Applicant access to his office and refusing to allocate him work

Authorities

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Legislation

  • Judicature ActSection 5
  • Supreme Court Practice of EnglandOrder 52 Rule 3
  • Criminal Procedure Rules (Kenya)Order 5 Rule 17
  • Civil Procedure (Amendment No. 2) Rules 2012 of EnglandRule 81.10; Rules 81.5 & 81.7
  • Universities Act 2012Section 35(1)(v); Section 36; Sections 72-76; Section 81(1)
  • Egerton University Act
  • Kisii University College Order of 2007
  • Interpretation and General Provisions Act (Cap 2)Section 23(3)(c)
  • Constitution of Kenya (order in council referred to as Cap 2 context)

Cases cited (21)

  • Teachers' Service Commission Vs Kenya National Union of Teachers and 2 others
    (2013) eKLR
  • Kenya Tea Growers Association Vs Francis Atwoli and 5 Others
    (2012) eKLR
  • Econet Wireless Limited Vs Minister for Information & Communication of Kenya & Another
    (2005) eKLR
  • United States University (USIU) Vs Attorney General
    High Court of Kenya at Nairobi Petition No. 170 of 2012
  • Emma Wanjiku Ndungu Vs Francis Njoroge Kamau & 4 others
    (2012) eKLR
  • Mike Maina Kamau Vs Hon. Franklin Bett and 6 Others
    (2012) eKLR
  • Mutitika Vs Baharini Farm Limited
    (1985) KLR 229
  • Refrigerator and Kitchen Utensils Ltd Vs G.P. Shah and Others
    Civil Appeal No. 39 of 1990
  • Mohamed vs Bakari & 2 Others
    (2005) 2 KLR
  • J.Z. Ochino and Another Vs George A. Okombo and Others
    Civil Appeal No. 30 of 1989
  • Justus Wanjala Kisagani and 2 Others vs City Council of Nairobi and 3 Others
  • Justus Nyaribo Vs the Clerk to Nyamira County Assembly
    (2013) eKLR
  • Kenya Tourist Development Corporation Vs Kenya National Capital Corporation & Another
  • The King vs General Commissioner for the purposes of Income Tax Act, the District of Kensington
    (1917) 1 KB 486
  • Nyamondi Ochieng and Another vs Kenya Posts & Telecommunication Corporation
    Civil Appeal No. 264 of 1993
  • Nelco Masanya Sagwe & Another vs County Secretary, Kisumu County & 4 Others
    Petition No. 286/2014
  • Justice Kariuki Mate & Another vs Martin Nyaga Wambora
    (2014) eKLR
  • Johnson vs Grant
    1923 SC 789
  • Spoke v Banbury Board of Health
  • Stancmb v Trowbrudge UDC
  • Kerr on Injunction (6th Edition)
Jurisdiction invoked
Section 5 of the Judicature Act and Order 52 Rule 3 of the Supreme Court Practice of England (contempt of court jurisdiction)

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, "Mwaniki Silas Ngari v John S. Akama & another [2015] KEELRC 552 (KLR)", Case Analysis (2015). Application dated 16th September, 2013 (Contempt Application in Memorandum of Claim). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/552/eng@2015-08-20

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