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ELRCDismissedCause No 1602 of 2018· [2019] KEELRC 759 (KLR)

Eziekiel O. Owuor v CIC Insurance Group Limited & another [2019] KEELRC 759 (KLR)

Employment and Labour Relations Court
27 September 2019
MOMAUREEN ONYANGO
1,935 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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The court refused to jail a CIC Insurance executive for contempt because the earlier order had expired and was never properly served with a penal notice.

What this practically means

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Executive summary

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The Applicant, Ezekiel Owuor, filed a Notice of Motion on 3rd June 2019 seeking to cite Tom M. Gitogo, Group Chief Executive Officer of CIC Insurance Group Limited, for contempt of an order of 13th December 2018 in which the Court directed that status quo be maintained and no further action be taken against the Applicant pending the inter-partes hearing. The Applicant alleged that the Contemnor withheld his May 2019 salary, removed him from the payroll, terminated his benefits and communicated that he had ceased to be an employee, contrary to the order. He sought committal for six months or sequestration of the Contemnor's properties, plus costs. The 2nd Respondent countered that the interim orders lapsed on 1st March 2019 when the Applicant's advocate failed to secure their extension, that the Applicant missed subsequent mention dates, that the order carried no penal notice, and that the Contemnor was never personally served. The Court found that the order was extended several times but expressly expired on 1st March 2019, so no orders subsisted on 1st and 15th May 2019 capable of being disobeyed. Relying on Woburn Estate Limited v Margaret Bashforth and Kenya Reinsurance Corporation Ltd v Eunice Mbogo, the Court further held that the Applicant did not prove personal service of the order together with a penal notice, both prerequisites to enforcing an order by contempt. The application was dismissed with costs in the cause.

Key legal issues

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01

Whether a subsisting order existed at the date of the alleged contempt

Holding

The interim status quo orders lapsed on 1st March 2019 when the Applicant's advocate failed to have them extended, so there were no orders capable of being disobeyed on 1st and 15th May 2019

Reasoning

The Court traced the chronology: the order of 13th December 2018 was extended several times until 1st March 2019, expressly to remain in force only until then. The Applicant did not attend the mentions of 26th March 2019 and 2nd May 2019. In the absence of a subsisting order there could be no disobedience.

02

Whether service of the order and the penal notice was proved

Holding

Service on the advocate on record was insufficient and no penal notice was attached to the order, so the contempt application could not succeed

Reasoning

A contempt application curtails the personal liberty of the contemnor and requires personal service of the order with a penal notice. The Applicant did not prove personal service on the 2nd Respondent, and the order of 13th December 2018 had no penal notice attached, rendering it unenforceable by contempt proceedings.

p. 3

Legal principles established

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  • An order cannot be enforced by contempt unless a copy of it has been served on the person required to do or not do the act, unless service is dispensed with, and a penal notice must accompany the order
  • A contempt application seeks orders curtailing the liberty of the contemnor in persona and the contemnor must be personally served with the order
  • The manner of displaying the penal notice is not defined; what matters is that a penal notice accompanies the order

Court orders

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  1. 1.The Notice of Motion dated 3rd June 2019 seeking to cite Tom M. Gitogo for contempt is dismissed
  2. 2.Costs shall be in the cause

Authorities

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Legislation

  • English Civil Procedure Rules, 1999Part 81.9(1)

Cases cited (5)

  • Christine Wangari Gachege v Elizabeth Wanjiru Evans and 11 Others
    [2014] eKLR
  • Shimmers Plaza Limited v National Bank of Kenya Limited
    [2015] eKLR
  • Evans Mumo Mwangangi v Kitui County Service Board & 4 Others
    [2016] eKLR
  • Woburn Estate Limited v Margaret Bashforth
    [2016] eKLR
  • Kenya Reinsurance Corporation Ltd v Eunice Mbogo
    [2019] eKLR
Jurisdiction invoked
Not expressly stated; inherent power of the Court to punish for contempt of its own orders

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, "Eziekiel O. Owuor v CIC Insurance Group Limited & another [2019] KEELRC 759 (KLR)", Case Analysis (2019). Cause No 1602 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/759/eng@2019-09-27

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