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ELRCPartially AllowedNot stated in the excerpt (Petition with Notice of Motion dated 25th August 2020)· [2020] KEELRC 219 (KLR)

Kenya County Government Workers Union v Wajir County Government & 4 others [2020] KEELRC 219 (KLR)

Employment and Labour Relations Court
11 November 2020
3,317 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that county officers must personally explain in court why they ignored orders on workers' salaries, despite a pending appeal.

What this practically means

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Executive summary

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The Kenya County Government Workers Union filed a Notice of Motion dated 25th August 2020 under Section 5(1) of the Judicature Act, Part 81 Rule 81.4 of the England Civil Procedure (Amendment No.2) Rules 2012 and Rule 28(1) of the ELRC (Procedure) Rules 2016, seeking that three officers of the Wajir County Assembly Service Board and Wajir County Government - Ibrahim Ahmed Yakub (Speaker), Shalle Sheikh Mursal (Clerk) and Abdullahi Mohamed Hassan (Chief Officer, Finance) - be summoned to show cause why they should not be committed to civil jail for failing to comply with the Court's orders of 16th January 2020 restraining the downward review of the union members' salaries, together with committal, a bar on addressing the Court, execution by the OCS Wajir, fines and attachment of assets. Shalle Sheikh Mursal swore replying affidavits contending that a Notice of Appeal dated 29th January 2020 and a stay application in Court of Appeal Civil Appeal E291 of 2020 were pending; that there was no willful disobedience; that no budget had been passed to legitimise payments; that execution against government must follow Section 21 of the Government Proceedings Act; and that the decree figure was inflated. The Applicant maintained that knowledge of the orders superseded personal service and that the obedience obligation applies even where a party believes an order irregular or void. The Court held that the Respondents had shown no prejudice in being asked to show cause, which would vindicate them, and allowed the application to the extent that the three named officers be summoned to show cause why they should not be committed to jail for disobeying the orders of 16/1/2020, with costs in the cause.

Key legal issues

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01

Whether officers of a county government and county assembly should be summoned to answer a charge of contempt for disobeying the judgment and orders of 16th January 2020

Holding

The application was allowed to the extent that the three named officers were to be summoned to show cause why they should not be committed to jail for disobeying the orders dated 16/1/2020

Reasoning

The Court reviewed the affidavits and submissions. The Respondents relied on the pending appeal and stay application, budgetary constraints and the Government Proceedings Act procedure. The Court found the Respondents had not shown any prejudice they would suffer by being asked to show cause, which would vindicate them and give them an opportunity to explain themselves. The Court therefore found no prejudice in granting the application at this interlocutory stage, without making a finding of contempt.

p. 4
02

Whether pending appeal/stay proceedings in the Court of Appeal bar the contempt application

Holding

The Court did not accept this as a bar; it proceeded to allow the show-cause summons despite the pending appeal

Reasoning

The Respondents argued that the pending stay application in Civil Appeal E291 of 2020 meant the Court should exercise restraint, and that hearing the contempt application would interfere with the subject matter of the appeal. The Applicant countered that the Court of Appeal had not issued any orders restraining the proceedings and that orders must be obeyed unless discharged. The Court made no express finding on this but granted the summons to show cause, indicating the pending appeal did not defeat the application at this stage.

p. 4
03

Whether contempt proceedings, rather than the statutory execution procedure against government under Section 21 of the Government Proceedings Act, were competent

Holding

Not finally determined; the Court allowed the application notwithstanding the objection

Reasoning

The Respondents submitted that under Section 21 of the Government Proceedings Act and Section 131 of the County Governments Act, individual officers cannot be personally liable and payments must follow the budgetary process; the proper route was a certificate of costs and an order of mandamus. The Applicant maintained contempt was the only means of enforcing the orders. The Court did not rule on this objection but allowed the application, finding no prejudice in requiring the officers to show cause.

p. 4

Legal principles established

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  • A party against whom a court order is made must obey it even where the order is believed to be irregular or void, and knowledge of an order supersedes the requirement of personal service
  • The Court has a general power to punish for contempt under Section 5 of the Judicature Act, being an inherent attribute necessary to protect the authority of the Court and the rule of law

Court orders

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  1. 1.The application allowed to the extent that the 3 named officers be summoned to show cause why they should not be committed to jail for disobeying the Court's orders dated 16/1/2020
  2. 2.Costs in the cause
Jurisdiction invoked
Section 5(1) of the Judicature Act Cap 8, Part 81 Rule 81.4 of the England Civil Procedure (Amendment No.2) Rules 2012, and Rule 28(1) of the Employment and Labour Relations Court (Procedure) Rules 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, "Kenya County Government Workers Union v Wajir County Government & 4 others [2020] KEELRC 219 (KLR)", Case Analysis (2020). Not stated in the excerpt (Petition with Notice of Motion dated 25th August 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/219/eng@2020-11-11

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