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ELRCDismissedMiscellaneous Application (Notice of Motion dated 27.10.2017) arising from Judicial Review application dated 3.8.2017 (substantive motion filed 31.8.2017)· [2018] KEELRC 2216 (KLR)

Republic v Directors of Immigration Services & others Ex-Parte Kenya Association of Plastic and Reconstructive Surgeons through its Claimant Stanley Ominde Kahinga [2018] KEELRC 2216 (KLR)

Employment and Labour Relations Court
20 March 2018
2,278 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to jail a foreign surgeon for contempt because the court order in question was directed at government officials, not at him.

What this practically means

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Executive summary

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The Kenya Medical Association, as Ex-parte Applicant, moved the Employment and Labour Relations Court by notice of motion dated 27.10.2017 under section 8 of the Contempt of Court Act, seeking a finding that Radovan Boca, a foreign plastic and reconstructive surgeon, was in contempt of leave orders issued by Mbaru J on 31.8.2017, and committal to civil jail for up to six months. The orders granted on 31.8.2017 gave leave to apply for prohibition against the 1st and 2nd Respondents issuing a work permit to the 4th Respondent, with the leave to operate as a stay, and leave to apply for certiorari to quash any permit already issued. The 1st to 3rd Respondents opposed through Jimmy Mukuli's affidavit, contending the orders did not bar the 4th Respondent from working, that a work permit had been applied for in 2015, approved, and renewed on 26.7.2017, and that the orders were overtaken by events; they also raised service and abuse-of-process objections. The 4th Respondent filed a preliminary objection that the court lacked jurisdiction for want of DPP consent or leave under section 8 of the Act and that the acts alleged were not criminal contempt. Wasilwa J framed two issues: awareness of the orders and breach. She found the 4th Respondent aware, since he admitted service on 4.9.2017, but held the orders were directed only at the 1st and 2nd Respondents and the permit predated them; nothing the 4th Respondent did after 31.8.2017 breached them. The application was dismissed with costs in the cause.

Key legal issues

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01

Awareness of the court order

Holding

The 4th Respondent was aware of the orders of 31.8.2017, having admitted service on 4.9.2017

Reasoning

The court relied on the 4th Respondent's own replying affidavit filed on 13.12.2017 in which he averred that he was served with the order on 4.9.2017. Awareness was therefore proved despite the objection that personal service was required under section 30(3) of the Contempt of Court Act.

p. 5
02

Whether Radovan Boca committed contempt

Holding

No contempt; the orders prohibited the 1st and 2nd Respondents from issuing a work permit, and the permit had already been issued before the orders

Reasoning

The orders of 31.8.2017 restrained the 1st and 2nd Respondents only. The 4th Respondent's work permit had been issued on 26/7/2017, before the orders, so nothing he did after 31/8/2017 contravened them. The applicant's remedy lay in the pending certiorari application to quash the permit, not in contempt proceedings against the 4th Respondent.

p. 5

Legal principles established

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  • A party cannot be punished for contempt where the court order breached was not directed at him and where the conduct complained of predates the order
  • Knowledge of a court order may be established by admission of service even where personal service is disputed

Court orders

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  1. 1.The notice of motion dated 27.10.2017 seeking contempt orders against Radovan Boca is dismissed
  2. 2.Costs in the cause

Authorities

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Legislation

  • Contempt of Court Actsection 8
  • Contempt of Court Actsection 30(3)

Cases cited (3)

  • B vs Attorney General
    (2004) 1 KLR 431
  • Republic vs The Kenya School of Law & Another
    Miscellaneous Application No. 58 of 2014
  • Margret Ogweno Okoth v Gabriel Onyango Wade
    HCCC No. 44 of 2003
Jurisdiction invoked
Section 8 of the Contempt of Court Act No. 46 of 2016 and all other enabling provisions of the law

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, "Republic v Directors of Immigration Services & others Ex-Parte Kenya Association of Plastic and Reconstructive Surgeons through its Claimant Stanley Ominde Kahinga [2018] KEELRC 2216 (KLR)", Case Analysis (2018). Miscellaneous Application (Notice of Motion dated 27.10.2017) arising from Judicial Review application dated 3.8.2017 (substantive motion filed 31.8.2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2216/eng@2018-03-20

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