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ELRCPartially AllowedPetition No. 8 of 2019 - Notice of Application dated 13th June 2019· [2019] KEELRC 703 (KLR)

Salome Munubi & 3 others v Muhammad Swazuri & 2 others; Emmanuel Busera (Interested Party); Kabale Tache Arero (Contemnor) [2019] KEELRC 703 (KLR)

Employment and Labour Relations Court
7 October 2019
MOMaureen Onyango
7,673 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~31 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court found the National Land Commission's Acting CEO guilty of contempt for ignoring a judgment ordering staff contracts to be renewed.

What this practically means

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Executive summary

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This was a notice of application dated 13th June 2019 in Petition No. 8 of 2019 at the Employment and Labour Relations Court at Nairobi, in which the petitioners sought contempt findings against Kabale Tache Arero, the Acting Secretary/CEO of the National Land Commission, including committal to civil jail for six months. The application followed the court's judgment of 24th May 2019 directing that the petitioners' contracts be renewed according to Commission resolutions of 8th May 2018 and 13th December 2018. The alleged contemnor and the respondents raised preliminary objections, contending that she was a stranger to the proceedings, lacked mandate to issue employment contracts, that the decree was not personally served, and that the procedure under Section 5 of the Judicature Act had not been complied with. The Interested Party similarly opposed, arguing strict compliance with contempt procedure and a high standard of proof. The court treated the preliminary objections as grounds of opposition, holding that with the repeal of Section 5 of the Judicature Act by the (now unconstitutional) Contempt of Court Act, the applicants' mode of approaching the court could not be faulted. On service, the court applied the principle that knowledge of an order suffices, finding service on the alleged contemnor's secretary proved and unrebutted, and knowledge through counsel established. On mandate, the court held that under Section 43 of the Interpretation and General Provisions Act an acting office holder exercises the powers of the office, that the Commission's letter of 30th November 2018 authorised the issuing of contracts, and that in any event implementing a court order required no prior authorisation. Finding the acts alleged - locking out petitioners, stopping salaries, blocking access to mailing systems - undenied and wilful, the court found the alleged contemnor in contempt and directed mention on 11th October 2019 for mitigation and sentencing.

Key legal issues

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Proper procedure for approaching the court in contempt proceedings following the declaration of unconstitutionality of the Contempt of Court Act

Holding

The applicants' manner of approaching the court could not be faulted in the absence of operative legislation on contempt procedure

Reasoning

Section 5 of the Judicature Act was repealed by Section 38 of the Contempt of Court Act 2016, which was itself declared unconstitutional. By virtue of Section 20 of the Interpretation and General Provisions Act, a repealed law is not revived unless expressly so provided. With no legislation governing the manner of instituting contempt proceedings, the applicants' approach was unimpeachable. The preliminary objections did not meet the Mukisa Biscuit threshold and were treated as grounds of opposition.

p. 6
02

Whether the alleged contemnor had authority and mandate to implement the judgment as Acting Secretary/CEO

Holding

As Acting Secretary/CEO she had the mandate of the substantive office holder, the authority of the Commission's letter of 30th November 2018, and of the court's judgment itself

Reasoning

The National Land Commission Act makes no provision for an acting Secretary/CEO, but Section 43 of the Interpretation and General Provisions Act vests the powers and duties of the office in the person for the time being holding it. Under Article 250(12) and Section 20(4) of the NLC Act, the Secretary/CEO is the accounting officer responsible for proper implementation. The Vice Chairperson's letter of 30th November 2018 directed her to issue contracts, and in any event she needed no prior authorisation to implement a court order.

p. 7
03

Whether service of the decree was properly proved

Holding

Service was proved, and in any event knowledge of the order by the alleged contemnor and her advocate suffices

Reasoning

Two affidavits of service showed the decree was served on Habiba, the alleged contemnor's secretary, with her permission, and were not rebutted. The alleged contemnor admitted being informed of the judgment by her counsel. Kenyan jurisprudence, notably Shimmers Plaza and Basil Criticos, holds that knowledge supersedes personal service; where an advocate was in court when the order was made, knowledge on the client's part may be inferred.

p. 10
04

Whether the alleged contemnor wilfully disobeyed the court order

Holding

She was aware of the orders, was served with the decree, and wilfully refused to comply, committing further acts of contempt

Reasoning

The alleged contemnor did not deny the acts alleged: refusing to implement the decree, locking the offices of the 2nd and 4th Petitioners with padlocks, blocking their access to the internal mailing system, stopping their salaries and denying transportation. She neither complied nor sought clarification, stay or review, and no appeal was filed. Her conduct met the standard of proof required in contempt proceedings, which is higher than the balance of probabilities.

p. 10

Legal principles established

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  • A person served with a court order must comply with it unless it is stayed or set aside; failure to comply constitutes contempt
  • The standard of proof in contempt proceedings is higher than the balance of probabilities, almost but not exactly beyond reasonable doubt
  • Knowledge of a court order suffices to prove service for purposes of contempt; personal service is not strictly required
  • An acting office holder exercises the powers and performs the duties of the holder of that office under Section 43 of the Interpretation and General Provisions Act

Court orders

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  1. 1.Finding that KABALE TACHE ARERO, the Secretary/CEO, is in contempt of the judgment and decree of this court
  2. 2.Case to be mentioned on 11th October 2019 for mitigation and sentencing

Authorities

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Legislation

  • Constitution of KenyaArticles 50(1) and (2), 250(12), 252(1), 253
  • Judicature ActSection 5
  • Contempt of Court Act 2016Section 38
  • Interpretation and General Provisions ActSections 20, 43
  • National Land Commission ActSections 20(3), 20(4), 22
  • Public Service Commission ActSections 2, 34
  • Civil Procedure (Amendment No. 2) Rules, 2012Rule 81.8(1)
  • Anti-Corruption and Economic Crimes Actnot specified

Cases cited (23)

  • Vimalkumar Bhimji Depar Shah vs Bidco Africa Limited
  • Linnet V Coles
    [1986] 3 ALL ER 652
  • Abdalla Mugute -V- Moshin Bin Saleh and 3 Others
  • Ireri V George Anyona and 3 Others
  • North Tetu Farmers
  • Econet Wireless Kenya Ltd v. Minister for Information & Communication of Kenya and Another
    [2005] 1 KLR 828
  • Mukisa Biscuit Manufacturing Co. Limited v West End Distributors Limited
    [1969] E. A. 696
  • Johnson Vs Grant
    1923 SC 789
  • Gulabchand Popatlal Shah & Another
    Civil Application No. 39 of 1990 (unreported)
  • HADKINSON v. HADKINSON
    (1952) 2 All E.R. 567
  • Attorney General v. Times Newspapers Ltd.
    [1974] A.C. 273
  • A. B. & Another -V- R. B.
    Civil Application No. 4 of 2016 [2016] eKLR
  • Burchell v. Burchell
    Case No. 364 of 2005
  • B. -V- Attorney General
    [2004] 1 KLR 431
  • Teachers Service Commission v Kenya National Union of Teachers & 2 Others
    [2013] eKLR
  • Republic -V- Ahmad Abolfathi Mohammed & Another
  • Mutitika v. Baharini Farm Limited
    [1985] KLR 229, 234
  • Shimmers Plaza Limited v. National Bank of Kenya Limited
    (2015) eKLR
  • Justus Kariuki Mate & Another vs Hon. Martin Wambora
  • Basil Criticos Vs Attorney General and 8 Others
    [2012] eKLR
  • Ex parte Langley
    1879, 13 Ch D. 110 (C.A)
  • Bhatnager v. Canada (Minister of Employment and Immigration)
    [1990] 2 S.C.R. 217
  • Avery v. Andrews
    (1882) 51LJ Ch. 414
Jurisdiction invoked
Inherent power of the court to punish contempt of its own orders; contempt application arising from judgment delivered by this court on 24th May 2019

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Salome Munubi & 3 others v Muhammad Swazuri & 2 others; Emmanuel Busera (Interested Party); Kabale Tache Arero (Contemnor) [2019] KEELRC 703 (KLR)", Case Analysis (2019). Petition No. 8 of 2019 - Notice of Application dated 13th June 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/703/eng@2019-10-07

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