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ELRCDismissedNot stated in judgment· [2019] KEELRC 777 (KLR)

Linnet Khasoha Abdalla v Vihiga County Public Service Board & 2 others [2019] KEELRC 777 (KLR)

Employment and Labour Relations Court
19 September 2019
MNMathews N. Nduma
591 words in judgment
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The bottom line

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You cannot enforce a money judgment against a Kenyan County Government through contempt proceedings; the correct route is a judicial review application for mandamus.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court by Mathews N. Nduma, J, delivered on 19th September 2019, dismissed a Notice of Motion dated 12th November 2018 by which the Claimant sought to institute contempt of court proceedings against a County Government Respondent, premised on Section 20(7) of the Employment and Labour Relations Court Act and Part V of the Contempt of Court Act No. 46 of 2016. The court held that the Contempt of Court Act had been declared null and void for inconsistency with the Constitution in Nairobi Constitutional Petition No. 87 of 2017 (KHRC v Attorney General), and could not be relied upon. Section 20(7) of the ELRC Act, though still valid, was confined to punishing defiance of court summons or subpoenas to attend or produce documents, supplemented by the Judicature Act and English common law; it could not be used to compel payment of a money decree. The court further noted the Respondent's preliminary objection that the application violated Section 21 of the Government Proceedings Act, which bars execution against government and shields individuals from personal liability for government payment obligations. Applying Koroso and Wanyee Roki, the court held that the only remedy for a judgment creditor against a County Government is judicial review seeking an order of mandamus compelling the relevant department to settle the decree. The application was dismissed as totally defective and lacking merit. No costs order appears in the judgment.

Key legal issues

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01

Viability of contempt proceedings under the Contempt of Court Act

Holding

The application fails because the Contempt of Court Act was declared null and void for inconsistency with the Constitution and cannot be relied upon

Reasoning

The application was premised on Section 20(7) of the ELRC Act and Part V of the Contempt of Court Act No. 46 of 2016. The court noted the Contempt of Court Act had been declared unconstitutional in Nairobi Constitutional Petition No. 87 of 2017 (KHRC v Attorney General), so it could not support the application.

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02

Scope of Section 20(7) of the ELRC Act

Holding

Section 20(7) remains valid but only covers defiance of summons or subpoena to attend court or produce documents or items

Reasoning

The court limited the surviving contempt provision of the ELRC Act to enforcement of attendance and production obligations, supplemented by the Judicature Act and English common law. It expressly held this provision does not suffice to compel a County Government to pay a money decree.

p. 1
03

Correct remedy against a County Government on a money judgment

Holding

The proper remedy is judicial review seeking mandamus compelling the relevant department to settle the decree

Reasoning

Sections 21(3) and (4) of the Government Proceedings Act bar execution against government, and no individual is personally liable for payment by the government. Relying on Koroso and Wanyee Roki, the court held mandamus through judicial review is the only avenue to realize a judgment against a County Government.

p. 1

Legal principles established

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  • The proper way to compel a County Government to satisfy a money judgment is by judicial review proceedings seeking an order of mandamus against the relevant department, not contempt or execution
  • Section 20(7) of the ELRC Act survives only for defiance of court summons or subpoena to attend or produce documents, not for enforcing money decrees

Court orders

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  1. 1.The Notice of Motion application is dismissed as totally defective and lacking merit

Authorities

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Legislation

  • Employment and Labour Relations Court ActSection 20(7)
  • Contempt of Court Act, No. 46 of 2016Part V
  • Government Proceedings Act, Cap 40Sections 21(3) and 21(4)
  • Judicature ActNot specified
  • Constitution of KenyaNot specified

Cases cited (3)

  • Republic vs The Attorney General and Another exparte James Alfred Koroso
    Judicial Review Miscellaneous Application No. 44 of 2012
  • Republic vs Attorney General and another exparte Stephen Wanyee Roki
    (2016) KLR
  • KHRC vs The Attorney General and another
    Nairobi Constitutional Petition No. 87 of 2017
Jurisdiction invoked
Section 20(7) of the Employment and Labour Relations Court Act, Cap 234; Part V of the Contempt of Court Act No. 46 of 2016 (since declared unconstitutional)

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, "Linnet Khasoha Abdalla v Vihiga County Public Service Board & 2 others [2019] KEELRC 777 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/777/eng@2019-09-19

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