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ELRCDismissedCause No 107 of 2015· [2018] KEELRC 2384 (KLR)

Evans Wafula Makokha & another v Council of Governors & 2 others [2018] KEELRC 2384 (KLR)

Employment and Labour Relations Court
2 March 2018
761 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court threw out a contempt case because the winning party never served the court order with a penal notice warning of punishment for disobedience.

What this practically means

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Executive summary

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This was a Notice of Motion dated 10th February 2016 in which the 2nd Respondent, the Local Authority Provident Fund (LAPFUND), sought the committal of the 1st Respondent (Council of Governors), the 3rd Respondent and the 1st Respondent's then Chairman, H.E. Peter Munya, for willful disobedience of a consent/interim order of 16th April 2015 restraining interference with pension and provident scheme operations and remittances, allegedly breached through a circular to County Governments urging adoption of the County Pension Fund. The court held that, since the alleged contempt arose before the Contempt of Court Act No. 46 of 2016 commenced on 13th January 2017, the applicable law was section 5 of the Judicial Service Act (now repealed), as informed by the Court of Appeal decision in Shimmers Plaza Limited v National Bank of Kenya Limited and the English Contempt of Court Act 1981 together with Part 81 of the Civil Procedure (Amendment No. 2) Rules 2012. The court emphasised that for breach-of-order contempt, the served order must prominently display a penal notice warning that disobedience is punishable by imprisonment, fine or sequestration, and that the order and penal notice must be served simultaneously. The supporting affidavit of David Koross did not depone to service, and the order bearing the warning was not attached. Finding no evidence of compliance with the mandatory procedure, the court dismissed the application as 'dead on arrival' with costs.

Key legal issues

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01

Applicable law of contempt

Holding

The pre-2017 contempt regime under section 5 of the Judicial Service Act applies because the alleged contempt arose before the Contempt of Court Act commenced

Reasoning

The alleged contempt relates to matters prior to the commencement of the Contempt of Court Act No. 46 of 2016 on 13th January 2017. The court therefore applied the law as set out under section 5 of the Judicial Service Act, which drew on the English Contempt of Court Act 1981 and Part 81 of the Civil Procedure (Amendment No. 2) Rules 2012, including the four categories of committal.

p. 1
02

Mandatory service of order with penal notice

Holding

Contempt for breach of an order cannot be enforced unless the served order prominently displays a penal notice warning of imprisonment, fine or sequestration, served simultaneously with the order

Reasoning

Under rule 81.9, judgments or orders to do or not do an act may not be enforced in contempt proceedings unless a warning of the consequences of disobedience is prominently displayed on the front of the served order. Only the 'breach' category has an outlined service procedure under rules 81.5–81.8. The applicant produced no evidence of such service.

p. 2
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Evidential failure of the contempt application

Holding

The application failed for want of proof of service and absence of the served order with penal notice

Reasoning

The supporting affidavit of David Koross did not depone to service of the order at all; the order bearing the express warning allegedly served on the 1st Respondent's Chairman was not attached; and there was no evidence of compliance with the mandatory procedure. The application was therefore 'dead on arrival' and dismissed with costs.

p. 2

Legal principles established

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  • Where contempt is alleged for breach of an order, the order served must prominently display a penal notice warning that disobedience is punishable, and the order and penal notice must be served simultaneously
  • Contempt proceedings for acts pre-dating the Contempt of Court Act 2016 are governed by section 5 of the Judicial Service Act (as it then stood)

Court orders

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  1. 1.The Notice of Motion dated 10th February, 2016 seeking committal for contempt is dismissed with costs

Authorities

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Legislation

  • Contempt of Court ActNo. 46 of 2016 (commenced 13th January 2017)
  • Judicial Service Actsection 5 (now repealed)
  • Civil Procedure (Amendment No. 2) Rules, 2012 (England)Part 81, rules 81.1, 81.4, 81.5, 81.6, 81.7, 81.8, 81.9, 81.16, 81.17
  • Contempt of Court Act 1981 (England)general

Cases cited (1)

  • Shimmers Plaza Limited v National Bank of Kenya Limited
    Civil Appeal No. 33 of 2012
Jurisdiction invoked
Inherent contempt jurisdiction under section 5 of the Judicial Service Act (now repealed); contempt arising prior to the Contempt of Court Act No. 46 of 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, "Evans Wafula Makokha & another v Council of Governors & 2 others [2018] KEELRC 2384 (KLR)", Case Analysis (2018). Cause No 107 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2384/eng@2018-03-02

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