Edwin Gichangi v Kenya Cultural Centre [2019] KEELRC 1191 (KLR)
The bottom line
#Kenya's Employment Court held a company chairman personally in contempt for disobeying a reinstatement order, confirming that individual officers—not just companies—answer for ignoring court orders.
What this practically means
#Executive summary
#Key legal issues
#Res judicata as a preliminary objection
Res judicata does not arise because the earlier ruling of 13 December 2018 made no definitive findings on the contempt application, the Contempt of Court Act having been declared unconstitutional; further, res judicata cannot be raised by way of preliminary objection.
The earlier application dated 20 July 2018 was predicated on the Contempt of Court Act, which had been declared invalid. Since the substantive law underpinning the application and the Court's jurisdiction had been invalidated, the Court never delved into the merits. Without a determination on the merits, the doctrine of res judicata cannot be invoked. The Court also endorsed the Kimani case that the defence should be raised through an application admitting evidence.
Double jeopardy under Article 50(2)(o)
The objection is lacking in substance as no finding of contempt has been made and no sanction or penalty has been imposed.
Double jeopardy protects against being tried or punished twice for the same offence. Since the prior contempt application was terminated without any finding of contempt or imposition of any sanction, no jeopardy ever attached. The doctrine is therefore inapplicable to the present committal application.
Wilful disobedience of the Court order
Mr Ole Moipei Nicholas M was in contempt by wilfully disobeying a valid Court order he was aware of; the order was clear, service/knowledge was established, and his actions were wilful and in bad faith.
The order of 5 July 2018 directing unconditional lifting of the Claimant's suspension and reinstatement was clear and unambiguous. Mr Moipei acknowledged receipt and purported to comply, but on the following day convened a disciplinary hearing on the same allegations, culminating in summary dismissal on 9 July 2018 without any fresh charges being put to the Claimant. His conduct undermined the dignity of the Court and the administration of justice. Benson Kimoni was not found in contempt.
Liability of officers where order is directed at a corporate Respondent
The arguments that the order was directed at the Respondent and not the Council, and on the Accounting Officer designation, were red herrings; corporations act through human beings who can be cited for contempt.
A corporation cannot be personally sanctioned; it acts through the instrumentality of human beings. As Chair, Mr Moipei convened the Council meeting of 9 July 2018, knew its agenda, and was aware of the Court order, and should have placed it before the Council. Instead he superintended over an agenda contrary to a valid order. The juristic personality of the Respondent and the Accounting Officer question were therefore red herrings.
Legal principles established
#- Res judicata does not arise where the court made no definitive findings on the merits of the earlier application
- Res judicata cannot be raised through a preliminary objection but should be raised through an appropriate application where evidence can be considered
- A corporation has no soul to be damned or body capable of being sanctioned and acts through human beings, who may be cited for contempt
- Double jeopardy objection fails where no finding of contempt has been made and no sanction imposed previously
Court orders
#- 1.Finding that Mr Ole Moipei Nicholas M, Chairman of the Respondent's Governing Council, is in contempt by wilfully disobeying the valid Court order of 5 July 2018 of which he was aware
- 2.Finding that Mr Benson Kimoni is not in contempt
- 3.Direction that Mr Ole Moipei Nicholas M appear in Court for mitigation and sentencing on 8 July 2019
- 4.Claimant awarded costs of the application
- Jurisdiction invoked
- Inherent contempt jurisdiction of the Employment and Labour Relations Court following the invalidation of the Contempt of Court Act in Kenya Human Rights Commission v Attorney General & Ors (2018) eKLR
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Edwin Gichangi v Kenya Cultural Centre [2019] KEELRC 1191 (KLR)", Case Analysis (2019). Cause No. 998 of 2018 (Ruling No. 3). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1191/eng@2019-07-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.