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ELRCStruck OutNot stated in the judgment (Notice of Motion dated 1st February, 2019 in a petition/claim)· [2019] KEELRC 1701 (KLR)

Fanuel Odede Kidenda v Cabinet Secretary, Ministry of Industry,Trade & Co-operatives, Peter G. Munya & 3 others [2019] KEELRC 1701 (KLR)

Employment and Labour Relations Court
30 April 2019
HWHellen Wasilwa
4,257 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out a contempt application because it relied on the Contempt of Court Act 2016, which had been declared unconstitutional.

What this practically means

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Executive summary

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The petitioner, Fanuel Odede Kidenda, moved the court by Notice of Motion dated 1st February, 2019, seeking contempt of court proceedings against George Makateto (3rd Respondent/1st Alleged Contemnor), the Acting Chief Executive Officer, and Paul Gicheru (2nd Alleged Contemnor), the Chairman, of the Export Processing Zones Authority (2nd Respondent). He sought thirty-day notices to show cause and their committal to civil jail for six months for allegedly disobeying a court order of 11th December, 2018 requiring the 2nd Respondent to facilitate payment of his salary up to December 2018. The application invoked Sections 4(1)(a), 5, 7 and 30 of the Contempt of Court Act and Sections 5(2) and 8 of the Export Processing Zones Act, Cap 517. The respondents filed grounds of opposition, replying affidavits by Thomas Mongare, Paul Gicheru and George Makateto, and a Preliminary Objection dated 27th February, 2019 contending that the Contempt of Court Act 2016 had been declared unconstitutional in its entirety by the High Court in Kenya Human Rights Commission vs The Attorney General, leaving the application founded on a non-existent law. The respondents also argued the salary order was ambiguous, not directed at the 2nd Respondent, that the petitioner had ceased work in September 2018, and that the officers enjoyed statutory protection under Section 8 of the EPZ Act. The petitioner relied on authorities on the sanctity of court orders and insisted the orders remained unactioned. Applying the preliminary objection, the court held that since the entire Contempt of Court Act 2016 had been declared unconstitutional by Mwita J on 9th November 2018, the application hung in the air without any legal footing. The court struck out the application, declining to delve into the other issues, and made no order as to costs. Judgment was delivered on 30th April, 2019 by Lady Justice Hellen Wasilwa.

Key legal issues

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Jurisdiction where the application is founded on a void statute

Holding

The court upheld the Preliminary Objection and struck out the application because the Contempt of Court Act 2016 had been declared unconstitutional in its entirety

Reasoning

The respondent's Preliminary Objection raised a pure point of law: the application cited Sections 4, 5, 7 and 30 of the Contempt of Court Act, 2016. In Kenya Human Rights Commission vs The Attorney General, the High Court (Mwita J) had on 9th November 2018 declared the entire Act invalid for lack of public participation and encroachment on judicial independence. An application resting on non-existent law cannot sustain contempt proceedings, so the court struck it out without delving into the other issues.

p. 6
02

Alleged contempt of the order of 11th December, 2018

Holding

Not determined, as the application was struck out on the jurisdictional Preliminary Objection

Reasoning

The court declined to examine the merits of the alleged disobedience - whether the salary payment order was clear and unambiguous, directed at the respondents, or breached - because the application itself was a nullity. The respondents had maintained compliance with the first two limbs of the order and disputed the clarity and direction of the salary limb, and the petitioner bore a high standard of proof, but these issues were not reached.

p. 6

Legal principles established

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  • An application premised on a statute declared unconstitutional is unsustainable for want of a legal foundation

Court orders

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  1. 1.The Notice of Motion dated 1st February, 2019 is struck out
  2. 2.No order as to costs

Authorities

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Legislation

  • Contempt of Court ActSections 4(1)(a), 5, 7, 30
  • Export Processing Zones Act, Cap 517Sections 3, 3(2)(3), 5(2), 8
  • Constitution of KenyaArticles 10, 118(b), 159

Cases cited (13)

  • Kenya Human Rights Commission Vs Hon Attorney General and the Law Society of Kenya
    Constitutional Petition 87 of 2017
  • Kenya Human Rights Commission vs The Attorney General & Another
    (2018) eKLR
  • Canadian Metal Co. Ltd Vs Canadian Broadcasting Corp (No. 2)
    (1975) 48 D.L.R (3d)
  • Sam Nyamweya & 3 Others Vs Kenya Premier League Ltd & 2 Others
    (2015) eKLR
  • Rose Detho Vs Ratilal Automobiles & Others
    (2018) eKLR
  • Jihan Freighters Limited Vs Hardware & General Stores Limited
    (2015) eKLR
  • Alken Connections Limited Vs Safaricom Limited & 2 Others
    (2013) eKLR
  • Salome Nyambura Kangethe T/A Shalom Enterprises & 13 Others Vs Nairobi City Council & 8 Others
    (2016) eKLR
  • Gatharia K Mutitika & 2 Others Vs Baharini Farm Limited
    (1985) KLR 227
  • Mukisa Biscuit Manufacturing Co. Ltd Vs Westend Distributors Ltd
    (1969) E.A 696
  • In the Matter of Interim Independent Electoral Commission
    (2011) eKLR
  • Owners of Motor Vessel 'Lillian S' Vs Caltex Oil (Kenya) Limited
    (1989) KLR 1
  • Michael Mungai Vs Housing Finance Co. (K) Ltd & 5 Others
    (2017) eKLR
Jurisdiction invoked
Purportedly invoked under Section 4(1)(a), 5, 7, 30 of the Contempt of Court Act and Section 5(2) and 8 of the Export Processing Zones Act Cap 517; court found the Contempt of Court Act 2016 unconstitutional and struck out the application for want of jurisdiction

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, "Fanuel Odede Kidenda v Cabinet Secretary, Ministry of Industry,Trade & Co-operatives, Peter G. Munya & 3 others [2019] KEELRC 1701 (KLR)", Case Analysis (2019). Not stated in the judgment (Notice of Motion dated 1st February, 2019 in a petition/claim). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1701/eng@2019-04-30

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