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ELRCDismissedNotice of Motion dated 20th April 2020 in a Petition dated 2nd November 2017· [2020] KEELRC 104 (KLR)

Amos William Omollo v County Government of Kisumu & 3 others [2020] KEELRC 104 (KLR)

Employment and Labour Relations Court
17 December 2020
MNMathews N. Nduma
1,062 words in judgment
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The bottom line

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A Kenyan employee who hid key facts to get court orders lost his bid to jail county officials for ignoring them.

What this practically means

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Executive summary

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The petitioner, Amos William Omollo, moved the Court by notice of motion dated 20th April 2020 seeking that Mr. Peter Anyang' Nyong'o, Mr. Godfrey Kigochi and Mr. Babu Kharan be committed to civil jail for up to six months for contempt of interim orders issued on 11th October 2019 and 9th April 2020, which allegedly required payment of his salary and benefits and suspension of a letter of termination of employment. The respondents replied through affidavits sworn by Babu Kharan, Chairperson of the County Public Service Board, and Godfrey M. Kigochi, the Board's secretary. They deposed that the petitioner had concealed material facts: that his salaries had been restored and the Court had confirmed this on 24th February 2020; that a ruling of Maureen Onyango J had already declined to interfere with the disciplinary process at the investigative stage; that the disciplinary process proceeded and a termination letter dated 15th February 2020 issued; and that the petitioner himself had sought to amend his petition of 2nd November 2017 on the footing that it had been overtaken by events. The petitioner filed no supplementary affidavit to refute these facts, which the Court accepted as unchallenged. MatheWs N. Nduma J held that the interim orders had been obtained through material non-disclosure and that the applicant therefore had no legitimate cause to cite the respondents for contempt. The application was dismissed with costs on 17th December 2020, delivery having been conducted online under the COVID-19 measures.

Key legal issues

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01

Whether the respondents were in contempt of the orders of 11th October 2019 and 9th April 2020

Holding

No contempt was established because the interim orders were procured by the petitioner's material non-disclosure and the subject matter had been overtaken by events

Reasoning

The respondents deposed, through sworn replying affidavits that went unrebutted, that the petitioner concealed the earlier ruling of Maureen Onyango J refusing to halt the disciplinary process, the subsequent termination of employment, and the fact that salaries had been restored and confirmed in court on 24th February 2020. The Court found that had these facts been disclosed, the exparte orders would not have issued. The application for contempt therefore failed.

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02

Effect of the petitioner's failure to file a supplementary affidavit to rebut the respondents' evidence

Holding

The respondents' facts stood unchallenged and were accepted by the Court

Reasoning

The petitioner filed no further or supplementary affidavit to refute the detailed facts set out in the replying affidavits of Babu Kharan and Godfrey M. Kigochi. In the absence of any rebuttal, the Court treated the respondents' account of the litigation history and non-disclosure as uncontroverted and acted upon it in dismissing the application.

p. 2

Legal principles established

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  • A party who obtains interim orders through material non-disclosure of facts cannot enforce those orders by contempt proceedings against the other side
  • Unchallenged affidavit evidence stands and is taken as admitted by the Court

Court orders

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  1. 1.The application dated 20th April 2020 is dismissed
  2. 2.Costs of the application awarded to the respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 21 rule 1
  • Civil Procedure ActSection 18
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
Jurisdiction invoked
Not expressly stated; contempt of court orders issued in the petition, with delivery of ruling guided by Article 159(2)(d) and Article 48 of the Constitution and Section 18 of the Civil Procedure 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, "Amos William Omollo v County Government of Kisumu & 3 others [2020] KEELRC 104 (KLR)", Case Analysis (2020). Notice of Motion dated 20th April 2020 in a Petition dated 2nd November 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/104/eng@2020-12-17

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