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ELRCAllowedNot stated in the judgment· [2016] KEELRC 605 (KLR)

Shadrack Muchemi Mbau v Presbyterian University of East Africa [2016] KEELRC 605 (KLR)

Employment and Labour Relations Court
7 October 2016
MNMathews N. Nduma
1,672 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court jailed a university Vice Chancellor and HR Manager for ignoring an employment court order, proving top officials can face prison for contempt.

What this practically means

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Executive summary

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By a notice of motion dated 19th May 2016, the applicant sought a finding that the respondent was in contempt of a court order issued on 4th May 2016 suspending the applicant's suspension and deployment, together with committal to civil jail of the Vice Chancellor, Prof. Peter B. Kibas, and the Human Resource Manager, Ms Elizabeth Muchoki. The applicant had been suspended on 14th April 2016; following the court order he reported to work on 12th May 2016 but was refused access, the Human Resource Manager stating that the court could not impose employees on the respondent. The order had been served on the office of the Human Resource Manager on 10th May 2016, and follow-up letters dated 12th and 16th May 2016 demanded compliance. The respondent filed no replying affidavit despite repeated indulgences; the court refused a third adjournment request and proceeded to hear the unopposed application. Relying on section 20(7) of the Employment and Labour Relations Court Act, the court held that although there was no personal service on the contemnors, the order was brought to their knowledge and they intentionally and blatantly failed to implement it, and they were given ample time to show reasonable cause but failed to do so. The court found both contemnors guilty, sentencing the Vice Chancellor to six months' imprisonment and the Human Resource Manager to three months, suspended for five days on condition of compliance with the order of 4th May 2016, and ordered the respondent to pay the costs of the application.

Key legal issues

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01

Whether contempt was established against the contemnors despite absence of personal service

Holding

The court found the contemnors guilty of contempt, holding that service on the office of the Human Resource Manager followed by follow-up letters brought the order to their knowledge, and they failed to show reasonable cause for non-compliance.

Reasoning

The order of 4th May 2016 was extracted and served on the office of the Human Resource Manager on 10th May 2016, with an affidavit of service filed. The applicant reported to work on 12th May 2016 but was turned away, and letters of 12th and 16th May 2016 demanded compliance. The court held knowledge was established; the contemnors were given ample opportunity to respond but filed none, so the unopposed application was allowed and sentences imposed.

p. 3
02

Whether the respondent should be granted further adjournments to file a response

Holding

The court refused a third request for adjournment, leaving the application undefended.

Reasoning

The respondent had been indulged on previous occasions to file a replying affidavit and again sought more time on 26th July 2016. The court refused the adjournment as it was the third such request on similar grounds, and proceeded to determine the unopposed application on the applicant's submissions.

p. 2

Legal principles established

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  • A person who without reasonable cause fails to comply with an order duly given under section 20(4) of the Employment and Labour Relations Court Act commits an offence liable to a fine not exceeding two hundred thousand shillings or imprisonment not exceeding six months or both
  • Personal service of a court order is not always necessary; knowledge of the order suffices to found a contempt finding

Court orders

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  1. 1.The Vice Chancellor of the respondent Prof. B. Kibas found guilty of contempt of court and sentenced to imprisonment for six months
  2. 2.The Human Resource Manager M/s Elizabeth Muchoki found guilty of contempt of court and sentenced to imprisonment for three months
  3. 3.The sentences suspended for five days on condition the contemnors comply with the order of the court issued on 4th May 2016, failing which the suspension is lifted and the sentences take effect
  4. 4.The respondent to pay the costs of the application

Authorities

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Legislation

  • Employment and Labour Relations Court ActSection 20(7)
  • Miscellaneous Amendment ActNo. 18 of 2014
Jurisdiction invoked
Section 20(7) of the Employment and Labour Relations Court Act 2011 as amended

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, "Shadrack Muchemi Mbau v Presbyterian University of East Africa [2016] KEELRC 605 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/605/eng@2016-10-07

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