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ELRCPartially AllowedNairobi Employment and Labour Relations Cause (contempt application dated 26th April 2017, arising from Cause No. 1220 of 2016)· [2018] KEELRC 2409 (KLR)

Central Board of The African Independent Pentecostal Church of Africa v Amos Mathenge Kabuthu & 4 others [2018] KEELRC 2409 (KLR)

Employment and Labour Relations Court
1 February 2018
2,559 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A private settlement cannot override a live court order in Kenya — defying a subsisting injunction is contempt, even if parties have reconciled.

What this practically means

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Executive summary

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The Applicant, Stanley Muthomi, moved the Employment and Labour Relations Court by Notice of Motion dated 26th April 2017 seeking a finding that Fredrick Wang'ombe, the 2nd Respondent, was in contempt of an interim injunction issued on 7th March 2017 by Justice Abuodha restraining him from performing functions attributable to the office of Archbishop of the Africa Independent Pentecostal Church of Africa. The Applicant alleged that between 9th and 16th April 2017 the 2nd Respondent presided over Holy Oil Ceremonies, Palm Sunday and Easter functions and wrote letters as Archbishop, and sought a fine of Kshs.10,000,000, attachment of assets, committal to civil jail for six months and police enforcement assistance. The Respondents opposed, relying on an Agreement and Reconciliation Accord of 3rd April 2017 between the church factions under which the 2nd Respondent took over, and relied on Eldo City Limited v Corn Products on enforceability of agreements. The Applicant countered that the accord was unprocedural, made without the Applicant's attendance, and revoked by the Central Board on 12th April 2017. Framing four issues, the Court held the Respondents knew of the order; that an agreement made outside the Court's direction and never adopted as a Court order could not vitiate a subsisting order; and that the acts of 9th–16th April 2017, committed while the extended orders were in force, amounted to blatant contempt. The Court found the 2nd Respondent guilty and liable to punishment, though no specific sanction, penalty or committal order appears in the judgment as delivered.

Key legal issues

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01

Knowledge of the Court order

Holding

The Respondents admitted knowledge of the order of 7th March 2017 injuncting the 2nd Respondent from performing functions of the Archbishop.

Reasoning

The Respondents' own affidavits and submissions acknowledged the contents of the injunction, demonstrating awareness. Knowledge being admitted, the foundation for a contempt charge was established without further proof of service.

p. 5
02

Validity of the 3rd April 2017 Agreement and Reconciliation Accord as a defence to contempt

Holding

The accord could not override the subsisting Court order because it was never brought to the Court's attention or adopted as a Court order.

Reasoning

The Court noted the accord was signed on 14th March 2017 while the orders of 7th March 2017 remained in force and were repeatedly extended. The Applicant was not party to the accord, the claim was never withdrawn as contemplated, and the Court had never reviewed its own orders. An out-of-court agreement therefore could not neutralise the injunction.

p. 6
03

Whether the 2nd Respondent committed contempt

Holding

The acts of the 2nd Respondent between 9th and 16th April 2017 were in blatant violation of the orders of 7th March 2017 and were punishable.

Reasoning

The complained-of acts — presiding over Holy Oil Ceremonies, Palm Sunday and Easter functions and writing letters as Archbishop — occurred between 9th and 16th April 2017, when the injunction was valid and had been extended several times, including on 27th April 2017. The defence of the accord having failed, the acts constituted contempt.

p. 6

Legal principles established

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  • A private agreement between parties made outside the Court's direction and not brought to the Court's attention cannot vitiate a subsisting Court order unless adopted as a Court order.
  • Courts punish contempt not because a judge is personally offended but to protect the integrity of the Court and the rule of law.

Court orders

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  1. 1.The 2nd Respondent, Fredrick Wang'ombe, is found guilty of disobeying the Court orders and is liable to be punished for contempt

Authorities

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Legislation

  • Judicature ActSection 5(1)
  • Industrial Court ActSection 12(3)
  • Constitution of KenyaArticle 162(2)
  • Constitution of KenyaArticle 159

Cases cited (4)

  • Eldo City Limited vs Corn Products Kenya Limited and Another
    (2013) eKLR
  • Masters v Cameroon
    (1954) 91 CLR 353; (1954) 28 ALJR 438
  • TSC vs KNUT
    (2013) eKLR
  • Council of Governors vs Pharmacists and Dentists Union
    2017 eKLR
Jurisdiction invoked
Section 5(1) of the Judicature Act Cap 8, Section 12(3) of the Industrial Court Act, Article 162(2) and Article 159 of the Constitution of Kenya

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, "Central Board of The African Independent Pentecostal Church of Africa v Amos Mathenge Kabuthu & 4 others [2018] KEELRC 2409 (KLR)", Case Analysis (2018). Nairobi Employment and Labour Relations Cause (contempt application dated 26th April 2017, arising from Cause No. 1220 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2409/eng@2018-02-01

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