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ELRCPartially AllowedPetition filed at ELRC Kisumu on 14 May 2015 (Cause No. 271 of 2014 also referenced)· [2015] KEELRC 765 (KLR)

James Omariba Nyaoga & another v Speaker of the County Assembly (Kisii) & 2 others [2015] KEELRC 765 (KLR)

Employment and Labour Relations Court
24 June 2015
RSRadido Stephen
2,088 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that even non-parties can face consequences for reckless public attacks on pending court cases — this MCA had to apologise in writing.

What this practically means

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Executive summary

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The Petitioners, the Clerk and Director of Finance of the County Assembly of Kisii, filed a Petition in the Employment and Labour Relations Court at Kisumu on 14 May 2015 alleging violation of their fundamental rights, together with a motion seeking conservatory orders. Because the Kisumu Judge was on leave, the Deputy Registrar transmitted the file to Nakuru, where Radido Stephen J certified the motion urgent and granted interim orders restraining the Respondents from commencing disciplinary action or interfering with the Petitioners' duties without complying with the County Government Act and the Public Finance Management Act, 2012. A complaint letter dated 20 May 2015 from Tabitha Okongo, a nominated Member of the County Assembly and member of its Justice and Legal Affairs Committee, alleged that the ex parte orders were irregularly obtained to benefit persons who had stolen public funds, impugned the Petitioners' advocate, and sought the Judge's disqualification. The Court summoned her under section 20(4) of the ELRC Act; on 8 June 2015 objections were raised by her counsel and the Respondents' counsel, who also moved for the Judge's disqualification, transfer of the Petition to Kisumu and setting aside of the interim orders. The Court dismissed the objections and the motion as red herrings. Following cross-examination, the Court found that Okongo's allegations were unfounded - the alleged boasting advocate was unknown and not on record, and the file transfer was regular - and held her conduct deliberate, reckless and an affront to the administration of justice. She was directed to write an apology within five days. The file was ordered returned to Kisumu for hearing and disposal, with the interim orders of 14 May 2015 extended in the interim. The Petition itself remains undetermined on the merits.

Key legal issues

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01

Suo moto summons to a non-party complaining about judicial conduct

Holding

The Court was entitled to summon Tabitha Okongo under section 20(4) of the ELRC Act because her letter directly implicated the matter before the Court and its integrity

Reasoning

The letter raised serious allegations about the integrity of the Court's handling of the Petition and the professional conduct of counsel. Section 20(4) gives the Court wide power to summon any person to give evidence. The allegations came from a non-party and directly affected the administration of justice, so the suo moto summons were express and proper, and the objections were dismissed.

p. 2
02

Scope of non-party comment on pending proceedings

Holding

Tabitha Okongo's letters were scandalous, deliberate and reckless, amounting to an attempt to pervert the administration of justice

Reasoning

She was not a party, belonged to a collective that had been served with orders and had counsel, yet made unverified allegations of boasting by an advocate she could not identify and sought the Judge's disqualification. The Court, relying on the Supreme Court's decision in Raila Odinga and Gikonyo J's decision, held her conduct an affront to the course of justice and directed an apology.

p. 4

Legal principles established

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  • Every court has a duty to preserve and protect its adjudicatory forum and uphold the integrity of justice delivery
  • A third party not participating in a suit can be cited for contempt for perverting the course of justice
  • A court may, of its own motion, summon a non-party whose out-of-court statements implicate its proceedings or impugn the integrity of the administration of justice

Court orders

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  1. 1.Objections by Mr. Biko and Mr. Nyambati rejected; the Respondents' motion of 4 June 2015 dismissed
  2. 2.Tabitha Okongo directed to write an apology letter copied to the parties mentioned in her letter dated 20 May 2015 within 5 days
  3. 3.The file to be transmitted back to Kisumu for hearing and disposal
  4. 4.Interim orders issued on 14 May 2015 extended pending placement of the file and further directions by the Court in Kisumu
Jurisdiction invoked
Employment and Labour Relations Court Act, section 20(4) (summoning powers); original jurisdiction of the ELRC over alleged violation of fundamental rights in employment within county government

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, "James Omariba Nyaoga & another v Speaker of the County Assembly (Kisii) & 2 others [2015] KEELRC 765 (KLR)", Case Analysis (2015). Petition filed at ELRC Kisumu on 14 May 2015 (Cause No. 271 of 2014 also referenced). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/765/eng@2015-06-24

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