Fredrick Njeru Kamunde v Tharaka Nithi County Government & 2 others [2016] KEELRC 1578 (KLR)
The bottom line
#Kenya's Employment Court confirmed it can jail officials who defy court orders, finding Tharaka Nithi's Governor in contempt for disobeying employment orders.
What this practically means
#Executive summary
#Key legal issues
#Contempt jurisdiction of the ELRC
The court holds it is vested with jurisdiction under section 5 of the Judicature Act to hear and determine contempt proceedings
Section 5 of the Judicature Act does not define 'High Court'; construed with section 7(1) of the Sixth Schedule, existing law continues with adaptations necessary for conformity with the 2010 Constitution. A contrary interpretation rendering the section vestigial would be absurd. Article 162 declares the ELRC a superior court, and superior courts are courts of general jurisdiction including contempt jurisdiction.
Service of contempt orders
Orders were duly served; personal service not mandatory where there is notice or knowledge
The 2nd respondent admitted receiving the orders on 12.05.2015 at Kathwana despite not being personally served, and admitted knowledge throughout. Counsel filed an affidavit of service showing service by email and physically. Following Halsbury's Laws and Kenyan authority, notice of a restraining order by telephone, telegram or otherwise suffices for enforcement.
Sequestration as a contempt remedy against a county government
Sequestration is available in contempt but refused on the facts
Sequestration is a last-resort remedy. Property to be sequestrated was not scheduled; the county assembly, an innocent component of the county government under Article 176(1), was not shown to have disobeyed the orders; and the vagueness doctrine requires contempt sanctions to be explicit and definite. Vicarious liability could not attach for the 2nd respondent's alleged unlawful actions.
Liability of the 2nd respondent for contempt
The 2nd respondent was found guilty of contempt on four counts of disobedience
Liability for breach of a court order is strict; mens rea unnecessary unless incorporated in the order; burden on the petitioner; standard higher than balance of probabilities but below criminal standard. Established disobedience: non-payment of salary and allowances; withdrawal of supporting staff without replacement; suspension of the petitioner and appointment of an acting county secretary contrary to the orders; and failure to provide transport by way of access to a pool car.
Liability of the 3rd respondent (County Commissioner)
Not established that the 3rd respondent disobeyed the security order
The order was personally served on 16.06.2015. The 3rd respondent conveyed by letter that Kathwana AP Camp police would provide security while the petitioner was on duty, but that authority to deploy personal security vested in the Inspector General of Police. That lack of authority was not rebutted and he did all within his authority.
Legal principles established
#- Superior courts established under the Constitution of Kenya, 2010, within their respective jurisdictions, are vested with contempt jurisdiction under section 5 of the Judicature Act
- Personal service of a court order is not necessary where the person had notice or knowledge of the order's terms; knowledge of an order suffices to bind a party to obey it
- Sequestration is available in contempt proceedings but is a remedy of last resort, not to be granted where other remedies are available
- Vicarious liability will not bind a government for clearly unlawful or ultra vires actions of a state or public officer devoid of furtherance of a genuine governmental purpose
- The standard of proof in contempt proceedings is higher than a balance of probabilities but not beyond reasonable doubt
- Mens rea is not an element of contempt liability unless intention is incorporated into the terms of the order; liability is strict upon proof of service/knowledge and breach
Court orders
#- 1.The applications dated 03.08.2015 and 30.09.2015 dismissed as against the 1st and 3rd respondents with no orders on costs
- 2.The 2nd respondent Samuel M. Ragwa to attend court in person or by advocate on Friday 18.03.2016 at 9.00am to show cause why warrants or orders for his arrest and committal in civil jail should not issue until he has purged the contempt
- 3.The 2nd respondent to pay the petitioner's costs of the applications
- 4.For avoidance of doubt and in furtherance of the orders of 12.05.2015 and 8.06.2015, the petitioner entitled to forthwith report at work not later than Monday 14.03.2016 at 8.00am with full pay and benefits, including release of all withheld pay
- Jurisdiction invoked
- Contempt jurisdiction of superior courts under section 5 of the Judicature Act (Cap 8) as construed with Article 162 of the Constitution and section 7(1) of the Sixth Schedule
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fredrick Njeru Kamunde v Tharaka Nithi County Government & 2 others [2016] KEELRC 1578 (KLR)", Case Analysis (2016). Petition (Nyeri ELRC) – orders of contempt application dated 03.08.2015 and 30.09.2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1578/eng@2016-03-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.