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ELRCPartially AllowedCause No 363 of 2019· [2020] KEELRC 865 (KLR)

Daniel Otieno Okun v Kenyatta University [2020] KEELRC 865 (KLR)

Employment and Labour Relations Court of Kenya
11 June 2020
HWHellen Wasilwa
3,214 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 refused to jail a university Vice Chancellor for contempt because the court order was never properly served on him personally.

What this practically means

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Executive summary

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The court determined two cross-applications arising from an employment dispute in which the Claimant, a dismissed staff member of the Respondent institution, remained occupying staff housing. The Claimant's Notice of Motion dated 3/4/2020 sought contempt findings against the Respondent and its Vice Chancellor, Professor Paul Kuria Wainaina, including committal to civil jail for six months, damages and sequestration of the Respondent's property, and release of household goods allegedly confiscated during an eviction carried out on 1/4/2020 in alleged defiance of the court's ex-parte orders of 31/3/2020 injuncting the eviction. The Respondent's Notice of Motion dated 9/4/2020 sought to set aside the ex-parte orders, arguing the Claimant had obtained them by concealing material facts, including that he had been dismissed for sexual harassment and was in rent arrears, and that the orders were prejudicial to a staff member allocated the house during the Covid-19 pandemic. The court held that contempt was not established: the order of 31/3/2020 was never properly served on the Vice Chancellor, service on the Respondent's advocates not amounting to service on him personally, and the Deputy Vice Chancellor's explanation that offices had closed due to Covid-19 sufficed. Further, the Respondent as an institution had not been cited for contempt, which disposed of the entire contempt application. The Respondent's setting-aside application was overtaken by events since the Claimant had already been evicted. The court directed the Respondents to release any confiscated property of the Claimant and made no order as to costs.

Key legal issues

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01

Whether the Respondent's Vice Chancellor was in contempt of the orders of 31/3/2020

Holding

No contempt was established because there was no proof of proper service of the order on the Vice Chancellor; his excuse through the Deputy Vice Chancellor sufficed and he was excused

Reasoning

The court required proof of service of the orders and a deliberate act in defiance thereof. The Claimant alleged service by email on the Vice Chancellor and physical service on the Respondent's advocates. The court held that service on counsel is not service on the Vice Chancellor personally, and the Deputy Vice Chancellor's explanation that offices had closed due to Covid-19 sufficed to show there was no proper service. Without proof of service to the individual cited, contempt could not be found.

p. 4
02

Whether the Respondent's application to set aside the ex-parte orders should be allowed

Holding

The application was spent as the Claimant had already been evicted; no substantive determination of the setting-aside was made

Reasoning

The Respondent sought to set aside the ex-parte orders of 31st March 2020 on grounds of non-disclosure and perjury by the Claimant. However, by the time of the ruling the Claimant had already been evicted from the premises, rendering the application academic. The court declined to adjudicate on the merits of the setting-aside grounds and treated the application as overtaken by events.

p. 5
03

Whether the confiscated household property should be released

Holding

The Respondents were directed to release any of the Claimant's property confiscated during the eviction

Reasoning

The Claimant sought release of all household property confiscated during the 1/4/2020 eviction, with payment for damaged and missing items. The court observed that the Claimant had not listed the property in question, but nonetheless directed the Respondents to release, if any, property they may have confiscated during the eviction process as prayed. No compensation for damaged or missing items was ordered.

p. 5

Legal principles established

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  • For a finding of contempt, the court must be satisfied that the orders were served on the alleged contemnor and that the contemnor, in blatant disregard of the orders, did or omitted to do an act in contempt
  • Service upon a party's counsel is not service upon a named individual officer such as a Vice Chancellor

Court orders

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  1. 1.The Respondent's Vice Chancellor is excused on the allegation of contempt as there was no proper service of the order upon him
  2. 2.The Respondent's application dated 9/4/2020 seeking to set aside the ex-parte orders of 31st March 2020 is spent, the Claimant having already been evicted
  3. 3.The Respondents to release, if any, property of the Applicant that they may have confiscated during the eviction process as prayed
  4. 4.No order of costs

Authorities

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Legislation

  • Employment and Labour Relations Court ActSection 12(3) & 16
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rules 17 & 28
  • Civil Procedure RulesRule 22B to Order 5

Cases cited (9)

  • Republic v Principal Secretary, Ministry of Defence Ex parte George Kariuki Waithaka
    [2019] eKLR
  • Shimmers Plaza Limited v National Bank of Kenya Limited
    [2015] eKLR
  • Re Estate of Kiptoo Cheboi (Deceased)
    [2019] eKLR
  • Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya & Another
    [2005] KLR 828
  • Miguna Miguna v Fred Matiangi, Cabinet Secretary Ministry of Interior and Co-ordination of National Government & 8 Others
    [2018] eKLR
  • Republic Vs Business Premises Rent Tribunal Interested Party John Mwangi Muturi & 3 Others
    (2016) eKLR
  • Stephen Somek Takwenyi & Another Vs David Mbuthia Githare & 2 Others
    Nairobi (Milimani) HCCC No. 363 of 2009
  • Mutitika Vs Baharini Farm Limited
    (1985) eKLR
  • Republic Vs Ahmad Abolfathi Mohammed & Another
    (2018) eKLR
Jurisdiction invoked
Section 12(3) & 16 of the Employment and Labour Relations Court Act and Rules 17 & 28 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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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Daniel Otieno Okun v Kenyatta University [2020] KEELRC 865 (KLR)", Case Analysis (2020). Cause No 363 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/865/eng@2020-06-11

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