Charles Barongo Nyakeri v County Government of Kisii & 3 others [2018] KEELRC 954 (KLR)

Employment and Labour Relations Court

9 October 2018

DMD.K. Njagi Marete

455 words in judgment

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The bottom line

A Kenyan court threw out contempt proceedings because the petitioner skipped mandatory steps for citing government officers, so follow the Contempt of Court Act exactly.

What this practically means

Executive summary

This is a ruling on a preliminary objection dated 26th January 2018 raised by the respondent/objector in contempt of court proceedings initiated by the petitioner. The objector advanced four grounds: that the 1st to 4th respondents or officers cited for contempt were not accounting officers of the 1st and 2nd respondents within the meaning of section 30(1) of the Contempt of Court Act, 2016; that no Notice to Show Cause had been served on the named officers in accordance with the law; that the officers cited were not accounting officers within the meaning of the Public Finance Management Act, No. 18 of 2012 and its regulations; and that the officers cited were not party to the suit and would be greatly disadvantaged if made party to the proceedings. Counsel for the objector, Mr. Onsembe, submitted that section 30(1) deals with punishment against management of government organs and that the petitioner had not satisfied grounds 2 to 4. The petitioner opposed, arguing that the Chief Justice had not made rules under section 37 of the Contempt of Court Act so section 5 of the Judicature Act remained in force, and that Article 159(2)(d) overrides legislative acts. The contempt proceedings arose from the respondents' alleged refusal to comply with consent orders in the petitioner's favour. The court found the objector's case stronger, holding that the petitioner's non-compliance with section 30(1) was fatal and obliterated the efficacy of the application. The preliminary objection was allowed on 9th October 2018, with each party bearing its own costs.

Key legal issues

Whether the contempt application could proceed against the cited officers under section 30(1) of the Contempt of Court Act

Holding

The preliminary objection succeeded because the applicant failed to comply with section 30(1) of the Contempt of Court Act, 2016

Reasoning

The objector argued that the officers cited were not accounting officers within the meaning of section 30(1) of the Contempt of Court Act and the Public Finance Management Act, and that no Notice to Show Cause had been served in accordance with the law. The court found the objector's case stronger than the petitioner's, holding that the petitioner's non-compliance with the statutory requirements on contempt was fatal and obliterated the efficacy of the application.

p. 2

Legal principles established

Non-compliance with section 30(1) of the Contempt of Court Act, 2016 is fatal to an application for punishment of management of government organs

Court orders

1.The preliminary objection dated 26th January 2018 is allowed
2.Each party bears their own costs of the application

Authorities

Legislation

Contempt of Court Actsection 30(1)
Contempt of Court Actsections 37, 38
Public Finance Management Act, No. 18 of 2012
Judicature Actsection 5
Constitution of Kenya, 2010Article 159(2)(d)

Jurisdiction invoked: Original contempt jurisdiction under the Contempt of Court Act, 2016 and section 5 of the Judicature Act

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Charles Barongo Nyakeri v County Government of Kisii & 3 others [2018] KEELRC 954 (KLR)", Case Analysis (2018). Petition No 10 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/954/eng@2018-10-09

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