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ELRCAllowednot stated in extract· [2018] KEELRC 1880 (KLR)

Tharaka Nithi County Government & another v Eustace Ndeke Kamunde [2018] KEELRC 1880 (KLR)

Employment and Labour Relations Court
11 May 2018
355 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~1 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court allowed contempt proceedings to start against a party who discussed a pending court case on radio, and stopped further broadcasts.

What this practically means

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Executive summary

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This is an ex-parte leave ruling in contempt of court proceedings arising from an ongoing cause before the Employment and Labour Relations Court at Meru. The Respondents sought leave to commence contempt proceedings against the 120th Claimant over remarks he made in a radio broadcast while the cause was pending, which they contended threatened the dignity of the court. The court noted that although the Contempt of Court Act 2016 was in force, its Rules had not yet been promulgated, and accordingly had recourse to the Rules of England and Wales, under Part 81.1.5 of which leave may be sought orally — here it was sought formally. Applying Republic v Tony Gachoka and Republic v PS Ministry of Defence, the court held that the Respondents, like any party, have an interest in upholding the dignity of the court and that it was prima facie apparent that the dignity of the court may be threatened by the words in the broadcast. The court declined to rely on the alleged contemnor's replying affidavit as he had not been formally enjoined in the contempt proceedings. Leave was granted to the Respondents to file a contempt motion within 21 days, with the alleged contemnor to be served and given 14 days to respond. Pending the hearing of that motion, the court issued, ex debito justitiae, an interim order barring the alleged contemnor or his agents from discussing the matter in any radio station. No costs order was made.

Key legal issues

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01

Whether the threshold for leave to commence contempt of court proceedings was met

Holding

Leave was granted; the motion met the threshold, supported by the statement, affidavit and authorities.

Reasoning

The Respondents, like any party, have an interest in upholding the dignity of the court. The statement and supporting affidavit set out in detail the conduct prompting the application — remarks made by the 120th Claimant on a radio station during the pendency of the cause. The court found it prima facie apparent that the dignity of the court may be threatened, and relying on Republic v Tony Gachoka and Republic v PS Ministry of Defence, granted leave to file a contempt motion within 21 days.

p. 2
02

Whether an interim gag order should issue pending the contempt motion

Holding

An interim order ex debito justitiae barring the alleged contemnor or his agents from discussing the matter in any radio station pending the motion was issued.

Reasoning

The court found prima facie concern that the dignity of the court was threatened by words uttered in a broadcast. Pending hearing of the contempt motion, it issued, ex debito justitiae, an order restraining the alleged contemnor and his agents from discussing the matter in any radio station during the pendency of the motion.

p. 2
03

Treatment of the alleged contemnor's replying affidavit

Holding

The court refrained from relying on the affidavit as the alleged contemnor had not been formally enjoined in the contempt proceedings.

Reasoning

The 120th Claimant responded by affidavit, but the court declined to place reliance on it because he had not yet been formally enjoined in the contempt proceedings, leave being the stage at which only the applicant's material is considered.

p. 2

Legal principles established

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  • Where Contempt of Court Act Rules have not been promulgated, the court may have recourse to the Rules of England and Wales in contempt matters; a plea for leave may be made orally or formally.
  • Parties before the court have an interest in upholding the dignity of the court and may seek leave to institute contempt proceedings.
  • At the ex-parte leave stage the court is not required to examine the facts deeply, and the court will not rely on an affidavit of a party not formally enjoined in the contempt proceedings.

Court orders

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  1. 1.Leave granted to the Respondents to commence contempt of court proceedings by filing a motion within 21 days
  2. 2.The alleged contemnor to be served with the motion upon filing and to have 14 days to file his response
  3. 3.An order ex debito justitiae barring the alleged contemnor or his agents from discussing the matter in any radio station pending the hearing of the motion

Authorities

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Legislation

  • Contempt of Court Actgenerally (rules not yet promulgated)
  • Rules of England and Wales (Civil Procedure Rules)Part 81.1.5

Cases cited (2)

  • Republic v Tony Gachoka
  • Republic v PS Ministry of Defence
Jurisdiction invoked
Contempt of Court Act 2016 (rules not yet promulgated; recourse to England CPR Part 81.1.5)

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, "Tharaka Nithi County Government & another v Eustace Ndeke Kamunde [2018] KEELRC 1880 (KLR)", Case Analysis (2018). not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1880/eng@2018-05-11

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