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ELRCOtherApplication dated 24.05.2018, filed 31.05.2018 (notice of motion filed 09.05.2019)· [2019] KEELRC 200 (KLR)

Osman Ali Fankey v National Police Service Commission & 3 others [2019] KEELRC 200 (KLR)

Employment and Labour Relations Court
6 December 2019
2,482 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 refused to jail police bosses for defying employment orders, but paused their implementation while a related criminal case runs its course.

What this practically means

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Executive summary

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The claimant, a serving Administration Police officer due to retire on attaining 60 years, obtained interim orders on 13.03.2018 directing the respondents to retain him in employment at his prevailing rank, pay and benefits pending inter partes hearing, and encouraging the parties to compromise the suit. He moved the Court by notice of motion under the Contempt of Court Act 2016 seeking that the 1st to 4th respondents be cited for contempt and committed to civil jail for six months, alleging they disobeyed the orders after service. The 2nd and 3rd respondents opposed, asserting the claimant retired on 01.07.2017, that his registration as a person with disability was under criminal investigation as allegedly fraudulent, and that the ODPP had directed his prosecution for obtaining registration by false pretences. The Court found the orders were served and known, but declined to hold any respondent in contempt: the 1st respondent had issued instructions towards compliance; no contempt was shown against the 4th respondent; and the parties' consent orders to compromise and the pending prosecution made a contempt finding against the 2nd and 3rd respondents unjustified. The Court declined to discharge the interim orders, which stood by consent until determination of the suit, but stayed their implementation till further orders to balance justice given the ongoing criminal process. The application was determined with a stay of implementation of the interim orders and costs in the cause.

Key legal issues

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01

Whether the respondents were in contempt of the interim orders of 13.03.2018 requiring the claimant's retention in employment

Holding

No finding of contempt was made. The 1st respondent had issued instructions towards compliance, no contempt was shown against the 4th respondent, and the 2nd and 3rd respondents' participation in consent orders and the ongoing criminal investigations made contempt unjustified.

Reasoning

The Court accepted that the orders were served and known. However, the 1st respondent had written advising reinstatement to avoid contempt; the 4th respondent's role showed no contemptuous act. The parties had recorded consent orders showing intention to compromise, effectively adjourning compliance timelines. The ODPP's direction to prosecute the claimant over allegedly fraudulent disability registration was a serious mitigating factor against committal.

p. 3
02

Whether the interim orders of 13.03.2018 should be discharged or their implementation stayed

Holding

The Court declined to discharge the interim orders, which remained on record by consent to apply until hearing and determination of the suit, but stayed their implementation till further orders.

Reasoning

There was no application to set aside the interim orders, and they had been extended by consent until determination of the main suit. However, the ODPP's prosecution decision may affect the dispute, and the criminal justice process is distinct from the civil suit. To balance justice in the unique circumstances, the Court stayed implementation of the interim orders pending further orders, with the eventual outcome capable of near-full compensation by accruing payments.

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03

Whether the claimant had retired and whether his registration as a person with disability was genuine

Holding

These are matters for resolution at the full hearing of the suit on the parties' evidence, not on the contempt application.

Reasoning

The respondents asserted the claimant retired on 01.07.2017 and that his disability registration was fraudulent, supported by an ODPP decision to prosecute. The Court held that whether the claimant retired and followed due procedure to continue in service after registration as a person with disability are issues requiring evidence at full hearing, and that the prosecution may impact the dispute one way or the other.

p. 3

Legal principles established

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  • Contempt proceedings serve to safeguard the rule of law, not the integrity of the court or the applicant's interests
  • Consent orders by parties to compromise a suit and contempt application can amount to adjournment of compliance timelines and negate an intention to disobey court orders

Court orders

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  1. 1.There is stay of implementation of the relevant interim orders herein till further orders by the Court
  2. 2.Costs of the application in the cause

Authorities

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Legislation

  • Contempt of Court Act 2016section 5(a), (b)
  • Contempt of Court Act 2016section 28(1)
  • Civil Procedure Act (Cap 21)section 3A
  • Civil Procedure Rules 2010Order 51
  • Persons With Disabilities Act No. 14 of 2003definition of disability (as cited in replying affidavit)
  • Penal Codesection 320 (obtaining registration by false pretences)

Cases cited (1)

  • Teachers Service Commission –Versus– Kenya National Union of Teachers & 2 Others
    [2013] eKLR
Jurisdiction invoked
Section 5(a), (b) and 28(1) of the Contempt of Court Act 2016; section 3A of Cap 21; Order 51 Civil Procedure Rules 2010

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, "Osman Ali Fankey v National Police Service Commission & 3 others [2019] KEELRC 200 (KLR)", Case Analysis (2019). Application dated 24.05.2018, filed 31.05.2018 (notice of motion filed 09.05.2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/200/eng@2019-12-06

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