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ELRCDismissedNotice of Motion dated 28th March, 2018 (in suit with judgment delivered 7th December, 2017)· [2018] KEELRC 1183 (KLR)

James Mwangi Muraya v County Government of Nakuru & Another [2018] KEELRC 1183 (KLR)

Employment and Labour Relations Court
15 May 2018
MMM. Mbaru
1,346 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The claimant, having obtained judgment on 7th December, 2017 and extracted a decree on 28th February, 2018 against the County Government of Nakuru and its County Secretary, moved the court by Notice of Motion dated 28th March, 2018 under sections 1A, 1B and 3A of the Civil Procedure Act, section 12 of the Industrial Court Act, 2011 and sections 5, 7, 27 and 30 of the Contempt of Court Act, 2016, seeking summons to the County Secretary to show cause why he had failed to comply with the judgment, and, on continued failure, committal to civil jail for up to six months, sequestration of the 1st respondent's assets and/or a fine. The respondents opposed orally, contending that contempt was not a proper mode of execution against a County Government and that execution should follow Order 22 and 25 of the Civil Procedure Rules and section 21 of the County Government Act. The court agreed, holding that the Contempt of Court Act did not repeal or replace execution procedures under the Civil Procedure Act, that Rule 32(2) of the ELRC (Procedure) Rules, 2016 directs execution to follow the Civil Procedure Rules, and that section 30 of the Contempt of Court Act prescribes a thirty-day show-cause notice mechanism for State organs which was not followed. Applying the Kamkunji authority on absence of lacuna, the court found no justification for the contempt route. The application was declined with costs in the cause.

Key legal issues

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01

Whether contempt proceedings lie as a mode of executing a decree against a County Government

Holding

No - the claimant must use execution procedures under the Civil Procedure Act/Rules and section 21 of the County Government Act; contempt is not an appropriate substitute and none of those procedures were invoked

Reasoning

The court held that the Contempt of Court Act, 2016 did not repeal or replace the Civil Procedure Act and its execution rules. Rule 32(2) of the ELRC (Procedure) Rules, 2016 expressly directs parties executing decrees of the court to use the Civil Procedure Rules. Citing the Kamkunji case, the court found no lacuna in execution procedures that would justify invoking contempt, and applying the contempt route would circumvent well-established execution rules.

p. 2
02

Compliance with section 30 of the Contempt of Court Act, 2016

Holding

The statutory notice mechanism in section 30 was not invoked; no thirty-day show-cause notice on the accounting officer and the Attorney-General preceded the application

Reasoning

Section 30 requires that no contempt proceedings be commenced against the accounting officer of a State organ unless the court has issued a notice of not less than thirty days to show cause, served on the accounting officer and the Attorney-General. The claimant's application seeking committal directly, without such notice, could not stand.

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Legal principles established

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  • Execution of judgments of the Employment and Labour Relations Court must follow the procedures in the Civil Procedure Rules, per Rule 32(2) of the ELRC (Procedure) Rules, 2016
  • The Contempt of Court Act, 2016 does not replace or circumvent execution proceedings under the Civil Procedure Act and Rules
  • Contempt proceedings against an accounting officer of a State organ require a notice of not less than thirty days to show cause, served on the accounting officer and the Attorney-General

Court orders

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  1. 1.Application dated 28th March, 2018 declined
  2. 2.Costs in the cause

Authorities

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Legislation

  • Civil Procedure Actsections 1A, 1B, 3A
  • Civil Procedure RulesOrders 22 and 25
  • Industrial Court Actsection 12
  • Contempt of Court Actsections 5, 7, 27, 30
  • County Government Actsection 21
  • Employment and Labour Relations Court ActAct No. 18 of 2014 (as amended)
  • Employment and Labour Relations Court (Procedure) RulesRule 32(2)
  • Constitution of KenyaArticle 159

Cases cited (3)

  • Republic versus Returning Officer of Kamkunji Constituency & The Electoral Commission of Kenya
    HCMCA No. 13 of 2008
  • M Mwenesi vs. Shirley Luckhurst & Another
    Civil Application No. Nai. 170 of 2000
  • Kenya Industrial Estates Ltd vs. Transland Shoe Manufacturers Ltd. & 2 Others
    Civil Application No. Nai. 364 of 1999
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; sections 5, 7, 27 and 30 of the Contempt of Court Act, 2016; Rule 32(2) Employment and Labour Relations Court (Procedure) Rules, 2016

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, "James Mwangi Muraya v County Government of Nakuru & Another [2018] KEELRC 1183 (KLR)", Case Analysis (2018). Notice of Motion dated 28th March, 2018 (in suit with judgment delivered 7th December, 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1183/eng@2018-05-15

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