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ELRCPartially AllowedPetition (Nyeri ELRC) – orders of contempt application dated 03.08.2015 and 30.09.2015· [2016] KEELRC 1578 (KLR)

Fredrick Njeru Kamunde v Tharaka Nithi County Government & 2 others [2016] KEELRC 1578 (KLR)

Employment and Labour Relations Court
11 March 2016
6,526 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The petitioner, County Secretary of Tharaka Nithi County, obtained interim orders on 12.05.2015 restraining the respondents from breaching his employment contract, interfering with his statutory duties, causing unlawful termination, and advertising the county secretary post; further consent orders issued on 08.06.2015 on security and transport. Alleging disobedience, he sought (i) sequestration of the 1st respondent's property and (ii) committal of the 2nd respondent (Governor S.M. Ragwa) and the 3rd respondent (County Commissioner C.N Monari) for contempt. The court first confirmed its own contempt jurisdiction, holding that section 5 of the Judicature Act, construed with the Sixth Schedule to the Constitution, vests contempt jurisdiction in all superior courts established under the 2010 Constitution. It found the orders duly served, holding that personal service is unnecessary where the party had notice or knowledge of the terms. Sequestration was refused: it is a last-resort remedy, no property was scheduled, the innocent county assembly could be affected, and vicarious liability cannot bind a county government for the alleged unlawful actions of a public officer. The 3rd respondent was exonerated, having done all within his limited authority on security. Applying a strict-liability standard with a quasi-criminal burden and a standard of proof above balance of probabilities but below beyond-reasonable-doubt, the court found the 2nd respondent guilty of contempt for breaching the contract (unpaid salary and allowances), withdrawing the petitioner's support staff, suspending him and appointing an acting county secretary, and failing to provide transport. He was ordered to appear on 18.03.2016 to show cause why he should not be committed to civil jail; the applications were dismissed against the 1st and 3rd respondents with no costs, and the 2nd respondent was to pay the petitioner's costs.

Key legal issues

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01

Contempt jurisdiction of the ELRC

Holding

The court holds it is vested with jurisdiction under section 5 of the Judicature Act to hear and determine contempt proceedings

Reasoning

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.

p. 3
02

Service of contempt orders

Holding

Orders were duly served; personal service not mandatory where there is notice or knowledge

Reasoning

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.

p. 4
03

Sequestration as a contempt remedy against a county government

Holding

Sequestration is available in contempt but refused on the facts

Reasoning

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.

p. 5
04

Liability of the 2nd respondent for contempt

Holding

The 2nd respondent was found guilty of contempt on four counts of disobedience

Reasoning

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.

p. 9
05

Liability of the 3rd respondent (County Commissioner)

Holding

Not established that the 3rd respondent disobeyed the security order

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 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. 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. 3.The 2nd respondent to pay the petitioner's costs of the applications
  4. 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

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2, 10, 41, 47, 73, 227, 162, 176(1), 179(4), section 7(1) of the Sixth Schedule (Transitional and Consequential Provisions)
  • Judicature Act, Cap 8section 5
  • County Governments Act, 2012section 44(3)
  • Evidence Act, Cap 80section 107
  • Supreme Court Practice rules (England)Orders 45 and 52
  • Supreme Court of England rulesOrder 52

Cases cited (11)

  • Board of Governors, Moi High School Kabarak –Versus– Malkom Bell and Another
    [2013]KLR-SCK
  • Mwaniki Silas Ngari –Versus– John S. Akama & Another
    [2015]eKLR
  • Geoffrey Makana Asanyo –Versus– Nakuru Water and Sanitation Services Company and 6 Others
    [2014]eKLR
  • Justus Wanjala Kisiangani and 2 Others –Versus– City Council of Nairobi and 3 Others
    [2008]eKLR
  • Kenya Tourist Development Corporation –Versus– Kenya National Capital Corporation & Another
    High Court Civil Appeal No. 6776 of 1992
  • Mundia Njeru Gateria –Versus– Embu County Government and 3 Others
    [2015]eKLR
  • Kenya Tea Growers Association –Versus– Francis Atwoli & 5 Others
    [2012]eKLR
  • Knight –Versus– Clifton
    [1971] 2 ALL E.R 378
  • Clarke & Others –Versus– Chad Burn & Others
    (1985) ALL ER 211
  • Mutika –Versus– Baharini Farm Limited
    (1985) KLR 229
  • Hadkinson –Versus– Hadkinson
    [1952] 2 ALL ER 1952
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

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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, "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.