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ELRCDismissedPetition (application filed 11th February 2019)· [2019] KEELRC 2577 (KLR)

Okiya Omtatah Okoiti v President of Kenya & 4 others Interested Party; R. E. Kibwana & 4 others [2019] KEELRC 2577 (KLR)

Employment and Labour Relations Court
11 July 2019
6,366 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~25 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed an attempt to punish officials for ignoring a judgment, ruling that a declaration alone cannot be enforced without fresh proceedings.

What this practically means

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Executive summary

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The Petitioner filed a Notice of Motion on 11th February 2019 seeking declarations that the 1st to 4th Respondents were in contempt of the Court's judgment of 31st January 2019, which had directed that appointments to state corporation boards be made lawfully, fairly, openly, competitively and on merit. He sought suspension and quashing of numerous gazette notices appointing chairpersons and members of state corporation boards issued between January and February 2019, and an order denying the Respondents audience until the contempt was purged. Only the 4th Respondent responded, raising a preliminary objection on jurisdiction, arguing the Contempt of Court Act 2016 had been declared unconstitutional, that no positive order capable of disobedience was issued, that orders were never extracted or served, that the court was functus officio, and that the application was res judicata and contrary to natural justice. The court framed five issues and held that notwithstanding the unconstitutionality of the Contempt of Court Act 2016, courts could still punish contempt under the previous law (the Law of England as previously applied), as the Interpretation and General Provisions Act preserved accrued obligations. However, it held the 1st Respondent (President/Presidency) enjoyed immunity under Article 143(2), no orders could issue against the non-participating 2nd Respondent, and, crucially, having made only declaratory orders, the court was functus officio and could not supervise their enforcement or issue further orders. Enforcement would require a fresh cause. The application was dismissed with no order as to costs on 11th July 2019.

Key legal issues

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01

Jurisdiction to punish contempt absent a statute

Holding

The court retained jurisdiction notwithstanding the unconstitutionality of the Contempt of Court Act 2016, relying on the Interpretation and General Provisions Act, Cap 2, and the pre-existing law

Reasoning

The court invoked Section 23 of the Interpretation and General Provisions Act to hold that the declaration of unconstitutionality of the Contempt of Court Act did not affect accrued rights, privileges, obligations or liabilities. Courts could therefore continue to punish contempt by reference to the law of England as previously applied, so the application was not incompetent on this ground.

p. 8
02

Whether the court was functus officio

Holding

Yes - having rendered declaratory orders, the court could not issue further orders or supervise their enforcement; the Applicant must file a fresh cause

Reasoning

The court found that the judgment of 31st January 2019 contained purely declaratory orders, which per the cited authorities have no coercive effect and cannot be stayed or enforced by the court itself. Enforcement requires fresh proceedings. The court therefore declined to quash the gazette notices or punish the alleged contemnors.

p. 9
03

Sustainability of the 1st and 3rd Respondents

Holding

The President/Presidency is immune from civil proceedings under Article 143(2), so no proceedings lie against the 1st Respondent; no orders could issue against the 2nd Respondent which never participated

Reasoning

Applying Article 143(2) and Julius Nyarotho v Attorney General, the court held the President, Presidency and National Executive are the same thing and cannot be sued during the President's tenure. The Public Service Commission was an independent constitutional commission that never participated and it was unclear whether it was served, so no orders could issue against it at that stage.

p. 8
04

Whether the Respondents committed contempt

Holding

Not determined - the application was dismissed on functus officio grounds before reaching the merits of contempt

Reasoning

Although the court found it had jurisdiction over contempt and addressed the parties' submissions on notice of orders, it ultimately dismissed the application because it could not issue further orders after its declaratory judgment. The merits of the alleged contempt in gazetting board appointments were not adjudicated.

p. 9

Legal principles established

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  • Declaratory judgments have no coercive effect and cannot be stayed; a party seeking enforcement of a declaratory order must file fresh proceedings
  • A sitting President, Presidency or National Executive cannot be sued in civil proceedings during their term of office under Article 143(2) of the Constitution
  • Following the declaration of unconstitutionality of the Contempt of Court Act 2016, courts may still punish for contempt under the previous law (the Law of England as previously applied) since repeal does not affect accrued rights and obligations

Court orders

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  1. 1.The Notice of Motion dated 11th February 2019 is dismissed
  2. 2.No order as to costs
Jurisdiction invoked
Judicature Act Section 5 and Employment and Labour Relations Act Section 13 invoked for contempt; Article 143(2) Constitution on presidential immunity

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, "Okiya Omtatah Okoiti v President of Kenya & 4 others Interested Party; R. E. Kibwana & 4 others [2019] KEELRC 2577 (KLR)", Case Analysis (2019). Petition (application filed 11th February 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2577/eng@2019-07-11

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