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ELRCDismissedNotice of Motion dated 30th September 2015 (in Nairobi Industrial Cause No. 1262 of 2015, formerly Mombasa Industrial Cause No. 116 of 2013)· [2016] KEELRC 1092 (KLR)

Maurice M. Munyao & 148 others v Albert Chaurembo Mumba & 8 others [2016] KEELRC 1092 (KLR)

Employment and Labour Relations Court
13 May 2016
MNMathews Nderi Nduma
1,405 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court refused to jail an auctioneer for contempt because no court order actually prohibited filing the bill of costs.

What this practically means

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Executive summary

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The applicant, the Garnishee in a garnishee proceeding arising from Nairobi Industrial Cause No. 1262 of 2015 (formerly Mombasa Industrial Cause No. 116 of 2013), moved the court by Notice of Motion filed on 30th September 2015 seeking the committal to civil jail of Mutia Muindu T/A Mutibra Auctioneers for six months for contempt. The complaint was that despite orders issued by Rika J. on 26th November and 5th December 2014 staying execution and further proceedings, the Auctioneer, as agent of the Plaintiffs/Claimants, filed a bill of costs founded on a stayed proclamation. The respondents opposed: the advocate on record deposed that the decretal sum of Kshs. 257,819,043.20 was paid in full by 14th November 2014 and no further attachment occurred, and that the orders concerned parties who excluded the Auctioneer. The Auctioneer deposed that the order of 28th May 2015 was never served on him, that the bill of costs was filed on 6th February 2015 before that order, and that the applicant itself had by letter of 21st November 2014 requested the filing of the bill for taxation and later participated in the taxation and in related appeals. The court framed one issue: whether the filing of the bill of costs was in wilful defiance of the order of 5th December 2014. It noted that the taxing master, Hon. Kimanga R.M., had already specifically found there was no stay in the miscellaneous cause, that the Auctioneer was not a party to the main suit, and that no court had reversed that finding. Applying the Baharini Farm standard that contempt must be proved to a higher standard than the balance of probability, the court held the applicant failed to discharge that onus, especially as it had prompted the filing and fully participated in the taxation. The application was dismissed with costs.

Key legal issues

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Whether filing a bill of costs after a stay order constituted wilful contempt

Holding

No contempt: no court order prohibited the filing of the miscellaneous application for taxation of the Auctioneer's bill of costs, and the taxing master had already specifically found no stay existed in the miscellaneous cause, a finding never reversed

Reasoning

Rika J.'s orders of 26th November and 5th December 2014 stayed execution and further proceedings in the main cause. The taxing master (Hon. Kimanga R.M.) considered the alleged stay and declined to stay taxation, finding the Auctioneer was not a party to the main cause and that Misc. 2 of 2015 was a different matter. No court of competent jurisdiction reversed that decision. Further, the applicant itself requested the filing of the bill of costs and fully participated in the taxation.

p. 4
02

Standard of proof in contempt applications

Holding

The applicant failed to discharge the onus, contempt being quasi-criminal and requiring proof of actual disobedience beyond the balance of probability

Reasoning

Applying Gatharia K. Mutitile & 2 Others v Baharini Farm Limited [1985] KLR, the court reaffirmed that contempt is criminal in nature and must be proved to the higher standard. The applicant, having prompted the filing of the bill of costs by its letter of 21st November 2014 and participated in the taxation proceedings, could not establish wilful defiance.

p. 4

Legal principles established

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  • The standard of proof in contempt proceedings is higher than on a balance of probability because contempt is criminal in nature, and disobedience of the order must be actually proved

Court orders

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  1. 1.The Notice of Motion application dated 30th September 2015 seeking to commit the Auctioneer to civil jail is dismissed
  2. 2.Costs of the application awarded to the respondents

Authorities

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Cases cited (1)

  • Gatharia K. Mutitile & 2 others V. Baharini Farm Limited
    [1985] KLR
Jurisdiction invoked
Contempt/committal jurisdiction of the Employment and Labour Relations Court (Notice of Motion under the court's inherent powers to commit for contempt)

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, "Maurice M. Munyao & 148 others v Albert Chaurembo Mumba & 8 others [2016] KEELRC 1092 (KLR)", Case Analysis (2016). Notice of Motion dated 30th September 2015 (in Nairobi Industrial Cause No. 1262 of 2015, formerly Mombasa Industrial Cause No. 116 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1092/eng@2016-05-13

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