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ELRCPartially AllowedConsolidated Petitions (ruling on Notice of Motion dated 9th September, 2019 and Notice of Motion dated 7th October, 2019)· [2019] KEELRC 2582 (KLR)

Hosea Sitienei & another v University of Eldoret & 11 others [2019] KEELRC 2582 (KLR)

Employment and Labour Relations Court
24 October 2019
3,923 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan university found in contempt of a court order must pay Ksh.38.9 million now, as courts won't delay judgment enforcement without a real appeal.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nakuru (M. Mbaru, J) dealt with two applications arising from the court's judgment of 9th July, 2019, which followed the Court of Appeal's decision in Civil Appeal Nos. 55 and 58 of 2017. The petitioners sought committal of nine individual respondents to civil jail and a fine for contempt, plus leave to partially execute the decree for Ksh.38,903,116.60 before taxation of costs. The respondents opposed, arguing the decree was two-pronged (reinstatement or payment) and sought stay of execution pending Supreme Court Petition No. 33 of 2019 concerning the legality of the University Council. On contempt, the court found the decree was served and acknowledged, the 30-day compliance period had lapsed with neither reinstatement nor payment, and the respondents offered no explanation; it rejected their claim that they could elect between the alternative orders. However, it deferred punishment pending affirmation of compliance with the alternative payment orders, warning it would not hesitate to punish for contempt. On stay, applying the Aviation & Allied Workers Union principles, the court held no appeal existed against its own judgment and the proceedings before the higher courts did not relate to it, so stay was refused. On partial execution, applying section 94 of the Civil Procedure Act and Bamburi Portland Cement, good grounds existed for execution before taxation. The court allowed the petitioners' application in terms of partial execution for Ksh.38,903,116.60 and awarded them costs, and declined the stay application.

Key legal issues

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01

Whether the respondents were in contempt of the decree of 9th July, 2019

Holding

Contempt established: the decree was served and acknowledged, the 30-day compliance period lapsed, there was no reinstatement of Hosea Sitienei nor payment to Kiprop, and no explanation for non-compliance was offered. Punishment was however deferred pending compliance with the alternative orders.

Reasoning

The court found the decree was extracted, served and acknowledged on 18th July, 2019. The respondents offered no explanation for failure to reinstate or pay within 30 days. Their argument that the two-pronged decree allowed them to choose either reinstatement or payment failed because they demonstrated compliance with neither. Contempt proceedings protect the rule of law, not judicial ego. The respondents cannot rely on a stay application filed elsewhere to avoid liability.

p. 5
02

Whether stay of execution should issue pending Supreme Court Petition No. 33 of 2019

Holding

Stay refused. The matters before the Court of Appeal and Supreme Court do not relate to this court's judgement; there is no appeal against it and no stay orders from any superior court.

Reasoning

Applying the Aviation & Allied Workers Union principles, the court held the discretion to stay must not prevent an appeal, but here no appeal exists against the judgement of 9th July, 2019. The Supreme Court petition concerns the legality of the University Council, not this judgment. The respondents' offer to deposit security was insufficient without a foundation that an appeal exists likely to be rendered nugatory. A judgment holder must be allowed to enjoy the fruits of judgment.

p. 4
03

Whether partial execution of the decree before taxation of costs should be allowed

Holding

Allowed. Section 13 of the ELRC Act read with section 94 of the Civil Procedure Act permits execution before taxation where necessary; the respondents' non-compliance for over 30 days constituted good reason.

Reasoning

The court adopted Bamburi Portland Cement requiring leave for execution before taxation, by notice of motion served and heard inter partes. The applicants moved by motion; the lapse by the respondents to reinstate or pay, with dues owing for over 30 days, formed good grounds. Partial execution for the sum of Ksh.38,903,116.60 was granted to preserve the petitioners' dignity and protect them against destitution while costs remained unascertained.

p. 6

Legal principles established

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  • Punishment for contempt safeguards the rule of law, not the personal integrity of the judiciary or the ego of the presiding judge
  • Where a decree offers alternative modes of compliance, the judgment debtor cannot be left at large to opt and proceed at will
  • Stay of execution cannot be granted where no appeal is pending against the judgment and no stay orders exist from a superior court
  • Under section 94 of the Civil Procedure Act, the court has discretion to allow execution of a decree before taxation of costs upon good reasons shown

Court orders

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  1. 1.The petitioners shall proceed with partial execution of the decree issued on 9th July, 2019 against the 10th respondent in favour of the applicants for the sum of Ksh.38,903,116.60 before taxation of the Party and Party Bill of costs
  2. 2.The petitioners are awarded costs of the application dated 9th September, 2019
  3. 3.The respondents' application dated 7th October, 2019 seeking stay of execution is declined

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)(1)
  • Judicature Actsection 5(1)
  • Employment and Labour Relations Court Act, 2011sections 3, 4, 12(3)(viii), 13, 29(1)
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rules 28(1)(g), 32(2)
  • Civil Procedure Actsection 94
  • Civil Procedure RulesOrder 21 Rule 7(4)

Cases cited (14)

  • Gatirau Peter Munya versus Dickson Mwenda Kithinji & 2 others
    [2014] eKLR
  • Stewart Robertson versus Her Majesty's Advocate
    2007 HCAC 63
  • Council of Governors versus Kenya Medical Practitioners Pharmacists and Dentists Union
    ELRC Cause No. 2486 of 2016
  • Republic versus Principal Secretary, Ministry of Defence ex parte George Kariuki Waithaka
    [2019] eKLR
  • Sam Nyamweya & 3 others versus Kenya Premier League Limited & 2 others
    [2015] eKLR
  • Ochino & another versus Okombo & 4 others
    [1998] KLR
  • Aviation & Allied Workers Union versus Kenya Airways & others
    Cause No. 1616 of 2012
  • Abukar Hassan Amal Hauliers Limited versus Abdulnasir
    [2017] eKLR
  • Republic versus Principal Magistrate's Court at Mavoko & another ex parte Joseph Ole Lenku Governor Kajiado County & another
    [2018] eKLR (written as [208] eKLR in the judgment)
  • Joseph Mburu Gathuru & 28 others versus County Government of Nakuru
    [2018] eKLR
  • C C M versus MNM
    [2018] eKLR
  • Teachers Service Commission versus Kenya National Union of Teachers & 2 others
    [2013] eKLR
  • Bamburi Portland Cement Co. Ltd versus Hussein
    (1995) LLR 1870 (CAK)
  • Hosea Sitienei & Ezekiel Kiprop versus University of Eldoret & Others
    Civil Appeal No. 55 and 58 of 2017
Jurisdiction invoked
Article 162(2)(1) of the Constitution, 2010; sections 3, 4, 12(3)(viii), 13 and 29(1) of the Employment and Labour Relations Court Act, 2011; Rule 28(1)(g) and 32(2) of the Employment and Labour Relations Court (Procedure) Rules, 2016; section 5(1) of the Judicature Act

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, "Hosea Sitienei & another v University of Eldoret & 11 others [2019] KEELRC 2582 (KLR)", Case Analysis (2019). Consolidated Petitions (ruling on Notice of Motion dated 9th September, 2019 and Notice of Motion dated 7th October, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2582/eng@2019-10-24

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