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ELRCPartially AllowedPetition (Machakos ELRC) - Notice of Motion dated 11.5.2018· [2018] KEELRC 1037 (KLR)

Dorothy Mwanzia Ng’ang’a & 4 others v Machakos County Government & 4 others [2018] KEELRC 1037 (KLR)

Employment and Labour Relations Court
27 September 2018
HWHellen Wasilwa
2,133 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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Machakos Employment Court found county officials in contempt for defying orders to reinstate board members and pay their salaries.

What this practically means

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Executive summary

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This judgment of the Employment and Labour Relations Court at Machakos (Hellen Wasilwa J, 27 September 2018) determined a Notice of Motion dated 11 May 2018 in which the Petitioners, members of the Machakos County Public Service Board, sought contempt proceedings against the 2nd and 4th Respondents. The Petitioners relied on three sets of interim orders: orders of 16 May 2016 (Nzioki wa Makau J) restraining the appointment of Board members; orders of 31 January 2018 (Wasilwa J) staying a notice changing their terms from full-time to part-time; and orders of 6 April 2018 (Abuodha J) staying their suspension of 20 March 2018. They complained that despite these orders they were suspended, their offices closed, and their salaries unpaid from March to May 2018. The Respondents, through a Replying Affidavit of Francis Kiio Mwaka, denied contempt, asserted compliance, and raised allegations of bribery, nepotism and abuse of office against the Petitioners. The Court held that the orders effectively restored the Petitioners to their positions with salaries payable; the Respondents offered no defence to the non-payment and closure beyond putting the Petitioners to proof, which they failed to discharge. Allegations of criminal misconduct were held to be matters for the Ethics and Anti-Corruption Commission and no bar to compliance. The Court found the acts contemptuous under Section 4 of the Contempt of Court Act, allowed the application, ordered summons to issue against the 2nd and 4th Respondents to show cause why they should not be held in contempt, and awarded costs in the cause.

Key legal issues

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01

Whether the Respondents willfully disobeyed the Court's orders

Holding

The Court found the Respondents in contempt for failing to allow the Petitioners to perform their duties and failing to pay salaries as ordered

Reasoning

The Court revisited the three sets of orders issued (Nzioki wa Makau J on 16/5/2016; Wasilwa J on 31/1/2018; Abuodha J on 6/4/2018) and held they effectively restored the Petitioners to their positions with salaries payable. The Respondents denied contempt but offered no defence to the unpaid salaries and closed offices, only putting the Petitioners to strict proof, which they failed to discharge by not proving payment. Salary bank statements produced by the Petitioners confirmed non-payment. Allegations of bribery and abuse of office were held to be criminal matters for the EACC and no justification for disobedience.

p. 4
02

Whether summons should issue against the 2nd and 4th Respondents

Holding

Yes - the Court allowed the application and ordered summons to issue against the 2nd and 4th Respondents to show cause why they should not be held in contempt

Reasoning

Having found the acts contemptuous and punishable under Section 4 of the Contempt of Court Act, the Court granted the application in terms sought, directing that summons issue against the 2nd and 4th Respondents to explain why they should not be held in contempt, rather than committing them immediately.

p. 4

Legal principles established

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  • Civil contempt is willful disobedience of a judgment, decree, direction, order or other process of court
  • Failure to restore an applicant to office and to pay salaries as ordered amounts to contempt; allegations of misconduct or abuse of office do not excuse non-compliance with court orders

Court orders

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  1. 1.The Application is allowed in terms of the Application
  2. 2.Summons to issue against the 2nd and 4th Respondents to explain why they should not be held in contempt of Court
  3. 3.Costs in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 47, 50, 73(1)(b), 76(2)(b), 232
  • Contempt of Court ActSections 4(1)(a), 4(2)
  • Constitution of Kenya (Supervisory Jurisdiction & Protection of Fundamental Rights and Freedom of the Individual) High Court (Practice Rules)Rule 19
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 17
  • Fair Administrative Action ActNot specified
  • Leadership and Integrity Act No. 19 of 2012Section 12
Jurisdiction invoked
Rule 19 of the Constitution of Kenya (Supervisory Jurisdiction & Protection of Fundamental Rights and Freedoms of the Individual) High Court (Practice Rules), Rule 17 of the Employment and Labour Relations Court (Procedure) Rules, 2016 and Sections 4(1)(a) and 4(2) of the Contempt of Court Act

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, "Dorothy Mwanzia Ng’ang’a & 4 others v Machakos County Government & 4 others [2018] KEELRC 1037 (KLR)", Case Analysis (2018). Petition (Machakos ELRC) - Notice of Motion dated 11.5.2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1037/eng@2018-09-27

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