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ELRCOtherNot stated in the judgment extract· [2020] KEELRC 1150 (KLR)

Stephen Munene Njagi & another v Tharaka Nithi County Government [2020] KEELRC 1150 (KLR)

Employment and Labour Relations Court
11 May 2020
NMNzioki wa Makau
815 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out contempt proceedings because they relied on the Contempt of Court Act, which had been declared unconstitutional.

What this practically means

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Executive summary

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The Respondent filed a preliminary objection against the Claimants' notice of motion dated 17th February 2020, which sought to punish the Respondent for contempt of court. The Respondent, through Mr. Munyori, argued that the court lacked jurisdiction because the motion was premised on the Contempt of Court Act, which the High Court had declared unconstitutional and invalid in Kenya Human Rights Commission v Attorney General & Another on 9th November 2018 for lack of public participation and for encroaching on judicial independence. Counsel relied on Owners of the Motor Vessel Lillian S v Caltex Oil Kenya Ltd, submitting that a court without jurisdiction must down its tools, and further argued that Section 63(2) of the Civil Procedure Act, relied on by the Claimants, concerns only interlocutory relief whereas contempt orders sought were final. Miss Wangechi opposed, urging that courts have a duty to safeguard their dignity, that contempt proceedings address blatant disregard of judicial authority, and that where there is a lacuna, Section 3A of the Civil Procedure Act confers inherent authority to make orders that meet the ends of justice. The court held that since the motion expressly cited the Contempt of Court Act, a law declared a nullity, the preliminary objection was well founded: basing any action on an invalid act is futility. The court struck out the motion dated 17th February 2020 with no order as to costs, rendered the decision online under the COVID-19 Practice Directions, and automatically stayed execution of the judgment for 14 days.

Key legal issues

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01

Effect of the invalidation of the Contempt of Court Act on contempt proceedings founded on it

Holding

The Contempt of Court Act was declared invalid for lack of public participation and encroachment on judicial independence; a motion citing it is without basis and must be struck out

Reasoning

The High Court in Kenya Human Rights Commission v Attorney General & Another declared the entire Contempt of Court Act invalid on 9th November 2018 for lack of public participation required by Articles 10 and 118(b) of the Constitution and for encroaching on the independence of the Judiciary. The Claimants' motion dated 17th February 2020 expressly cited the Contempt of Court Act. Since the law relied on was a nullity, the motion had no legal foundation and the preliminary objection succeeded.

p. 2
02

Whether the inherent jurisdiction under Section 3A of the Civil Procedure Act could save the motion despite lacunae

Holding

The court did not invoke Section 3A to sustain the motion; theClaimants' reliance on lacunae arguments did not prevent striking out the motion

Reasoning

Miss Wangechi argued, relying on Christine Wangari Gachoge v Wanjiru Evans & 11 Others as cited in Republic v Principal Secretary, Ministry of Defence ex parte George Kariuki Waithaka, that where there is a lacuna Section 3A of the Civil Procedure Act gives the court inherent authority to make orders meeting the ends of justice. The court did not accept this: it held that the motion was premised on the invalid Act and therefore struck it out.

p. 1

Legal principles established

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  • A motion founded on a statute declared unconstitutional and invalid is a nullity and must fail
  • Where a court lacks jurisdiction, it must down its tools (Owners of the Motor Vessel Lillian S v Caltex Oil Kenya Ltd)

Court orders

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  1. 1.The motion dated 17th February 2020 seeking various reliefs for the Claimants is struck off with no order as to costs
  2. 2.Execution of the judgment is automatically stayed for 14 days in line with the Chief Justice's COVID-19 Practice Directions

Authorities

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Legislation

  • Contempt of Court ActEntire Act
  • Civil Procedure ActSection 63(2)
  • Civil Procedure ActSection 3A
  • Constitution of KenyaArticles 10 and 118(b)
  • Constitution of KenyaArticle 159
  • Civil Procedure RulesOrder 21 Rule 1 and 3

Cases cited (4)

  • Kenya Human Rights Commission v Attorney General & Another
    [2018] eKLR
  • Owners of the Motor Vessel Lillian S v Caltex Oil Kenya Ltd
    [1989] KLR 1
  • Republic v Principal Secretary, Ministry of Defence ex parte George Kariuki Waithaka
    [2018] eKLR
  • Christine Wangari Gachoge v Wanjiru Evans & 11 Others
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction; proceedings premised on the Contempt of Court Act and Section 3A and Section 63(2) of the Civil Procedure Act (contested)

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, "Stephen Munene Njagi & another v Tharaka Nithi County Government [2020] KEELRC 1150 (KLR)", Case Analysis (2020). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1150/eng@2020-05-11

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