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ELRCDismissedNot stated in judgment· [2020] KEELRC 735 (KLR)

Henry Owino Obonyo & another v Kenya Airways Limited [2020] KEELRC 735 (KLR)

Employment and Labour Relations Court
9 July 2020
1,147 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court threw out a contempt application because the claimants cited a company's director instead of the company itself.

What this practically means

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Executive summary

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The Claimants moved the court by an application dated 24th February 2020 seeking to cite the Respondent for contempt of the judgment delivered on 9/10/2019, to commit the Respondent's Group Managing Director and Chief Executive Officer to civil jail for disobedience of the conditional stay orders granted on 16/12/2019, and to secure enforcement through the Officer Commanding Embakasi Police Station. The applicants contended that the Respondent was to pay half the decretal sum and deposit the other half in an interest-earning account within 60 days, failing which execution would issue, but the period lapsed without compliance. They submitted that personal service and a penal notice were no longer necessary, relying inter alia on Shimmers Plaza Limited vs. National Bank of Kenya Limited. The Respondent opposed, contending that a review application was pending, that the application was based on a conditional order, that the individuals cited were not parties to the suit, that the former Managing Director had left on 31/12/2019, and that the application breached Section 5(2) of the Judicature Act. Justice Hellen Wasilwa held that the alleged contemnor, the Managing Director and CEO, was not a party to the suit; the proper contemnor was the Respondent itself, which had not been cited. The failure to cite the Respondent defeated the application, which was accordingly dismissed. The court ordered costs in the cause. Delivery was in chambers via zoom on 9th July 2020.

Key legal issues

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01

Whether the correct party was cited for contempt

Holding

The application failed because the Respondent, the party against whom the judgment was issued, was not cited for contempt; only its Managing Director and CEO, a non-party, was cited

Reasoning

The court observed that the person cited was the Managing Director and Chief Executive Officer, who is not a party to the suit. The contemnor should have been the Respondent itself, which had not been cited. The court also noted the current CEO was not in office when the orders were issued, and the applicants chose to cite the Managing Director without serving him despite having other means of execution.

p. 2
02

Effect of failure to comply with conditional stay orders

Holding

Although the applicants alleged the 60-day compliance period lapsed without payment, this did not save the application because of the defective citation of the contemnor

Reasoning

The applicants asserted that the stay granted on 16/12/2019 was conditional on payment of half the decretal sum and deposit of the other half in an interest-earning account within 60 days, and that the period lapsed without compliance, rendering the Respondent in contempt. However, the court found the application failed on the antecedent defect of not citing the Respondent as contemnor.

p. 1

Legal principles established

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  • In contempt proceedings arising from non-compliance with a judgment against a corporate body, the corporate body itself must be cited as the contemnor; failure to do so is fatal to the application

Court orders

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  1. 1.The application dated 24th February 2020 was dismissed for failure to cite the Respondent as the contemnor
  2. 2.Costs in the cause

Authorities

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Legislation

  • Judicature ActSection 5(2)

Cases cited (7)

  • Shimmers Plaza Limited vs. National Bank of Kenya Limited
    [2015] eKLR
  • Justus Kariuki Mate & Another vs. Marin Nyaga Wambora & Another
    [2014] eKLR
  • Basil Criticos vs. Attorney General & 8 Others & 4 Other
    [2012] eKLR
  • Payless Car Hire and Tours Limited vs. Imperial Bank Limited
    [2012] eKLR
  • Nyamogo & Another vs. Kenya Posts and Telecommunications
    [1999-1994] EA at 464
  • Christine Wangari Chege vs. Elizabeth Wanjiru Evans & 11 Others
    [2014] eKLR
  • Kenya Reinsurance Corporation Limited vs. Eunice Mbogo
    [2019] eKLR
Jurisdiction invoked
Contempt of court proceedings under Section 5(2) of the Judicature Act (invoked by the Respondent); enforcement of the court's judgment of 9/10/2019

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, "Henry Owino Obonyo & another v Kenya Airways Limited [2020] KEELRC 735 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/735/eng@2020-07-09

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