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ELRCDismissedNot stated in the judgment (the Cause in which the application was filed; referenced only as 'the Cause herein')· [2019] KEELRC 1324 (KLR)

Oigala Henry Oanya v Kenya Methodist University [2019] KEELRC 1324 (KLR)

Employment and Labour Relations Court
13 June 2019
HWHellen Wasilwa
1,051 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 struck out a contempt case because it was based on a law that had already been declared unconstitutional.

What this practically means

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Executive summary

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The Claimant, Oigala Henry Oanya, moved the Employment and Labour Relations Court by a Notice of Motion dated 4th February 2019 seeking interim preservation orders to stay or suspend the Respondent's letters of 11th January 2019 transferring him from the Nairobi to the Mombasa Campus, and seeking committal to civil jail of the Vice Chancellor and Human Resource Manager of Kenya Methodist University for up to six months for wilful disobedience of consent orders issued by Wasilwa J on 19th June 2017 and 12th July 2017, alleging non-reinstatement and late, irregular payment of salary. The Respondent opposed through Grounds of Opposition and the Replying Affidavit of Lilian Mutuma, contending that the orders had not barred operational decisions such as staff transfers, that the Claimant remained employed and had not been terminated, that the transfer was lawful under the Kenya Methodist University Chapter, and that the contempt threshold had not been met. In submissions, the Claimant relied on Hadkinson, Econet Wireless and Moi Girls High School Kabarak on the duty to obey court orders; the Respondent relied on Sam Nyamweya and Ringera v Muite on the contempt threshold and argued that the application was incompetent because it was anchored on the Contempt of Court Act No. 46 of 2016, invalidated in Kenya Human Rights Commission v Attorney General. Wasilwa J agreed that the statute underpinning the application had been declared unconstitutional, held the application fatally defective, and struck it out on 13th June 2019. No costs order is recorded.

Key legal issues

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01

Competence of a contempt application founded on the invalidated Contempt of Court Act

Holding

The application was struck out as fatally defective because the statute under which it was brought had been declared unconstitutional

Reasoning

The court noted that the Applicant filed the application under the Contempt of Court Act No. 46 of 2016. That Act had been declared invalid by the High Court (Mwita J) in Kenya Human Rights Commission v Attorney General for lack of public participation required by Articles 10 and 118(b) of the Constitution and for encroaching on the independence of the Judiciary. A motion grounded on an invalidated statute could not stand, and the court accordingly struck it out without considering the merits of the alleged disobedience.

p. 2

Legal principles established

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  • An application founded on the Contempt of Court Act No. 46 of 2016 is fatally defective since that Act was declared invalid for lack of public participation and encroachment on judicial independence

Court orders

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  1. 1.The Claimant's application dated 4th February 2019 struck out as fatally defective

Authorities

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Legislation

  • Contempt of Court ActNo. 46 of 2016
  • Constitution of KenyaArticles 10 and 118(b)

Cases cited (6)

  • Hadkinson vs. Hadkinson
    [1952] 2 All ER 567
  • Econet Wireless Kenya Limited vs. Minister for Information & Communication of Kenya & Another
    [2005] 1 KLR 828
  • Board of Governors, Moi Girls High School Kabarak vs. Malcolm Bell
    [2013] eKLR
  • Sam Nyamweya & 3 Others vs. Kenya Premier League Limited & 2 Others
    [2015] eKLR
  • Ringera & 2 Others vs. Muite & 10 Others
    HCCC 1330 of 1991
  • Kenya Human Rights Commission vs. Attorney General & Another
    [2018] eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction; application brought under the Contempt of Court Act No. 46 of 2016

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, "Oigala Henry Oanya v Kenya Methodist University [2019] KEELRC 1324 (KLR)", Case Analysis (2019). Not stated in the judgment (the Cause in which the application was filed; referenced only as 'the Cause herein'). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1324/eng@2019-06-13

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