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ELRCDismissed· [2020] KEELRC 1718 (KLR)

Okiya Omtatah Okoiti v Board, Kenya Pipeline Company Limited & 2 others; John Ngumi & 10 others (Interested Parties) [2020] KEELRC 1718 (KLR)

Employment and Labour Relations Court (court name not expressly printed in the ruling text)
27 January 2020
5,808 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court found no contempt by Kenya Pipeline's board, lifted the status quo orders, and allowed it to appoint an acting Managing Director.

What this practically means

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Executive summary

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This ruling by Maureen Onyango, J at Nairobi disposes of two applications by the petitioner in a petition challenging the recruitment of Mr. Macharia Irungu as Managing Director of Kenya Pipeline Company. The first, dated 9th January 2020, sought to cite the Board members and Interested Parties for contempt and to deny them audience, alleging they had removed Acting Managing Director Hudson Andambi contrary to status quo orders issued on 6th December 2019. The court restated that status quo orders can ground contempt proceedings and that knowledge of an order supersedes personal service, and set out the four elements of civil contempt. It found the order clear and known to the respondents, but held there was no evidence of deliberate disobedience: Mr. Andambi had voluntarily relinquished office in his memo and email of 5th December 2019, and the respondents merely accepted his decision. The contempt application was dismissed. The court also vacated the status quo orders, noting the office of Managing Director had become vacant to the company's detriment, and directed the 1st and 2nd respondents to appoint an acting Managing Director pending determination of the petition, declining to order Mr. Andambi's return as that would see the court descend into the boardroom. The second application, dated 3rd January 2020, sought admission of an amended petition converting the Interested Parties into respondents and adding the PSC and the State Corporation Advisory Committee. Leave was declined because no relief was sought against the proposed parties, board members cannot be sued in two capacities in one suit, and the amendments would delay expeditious resolution. Both applications were dismissed; no costs order is recorded in the ruling.

Key legal issues

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01

Whether the respondents and Interested Parties were in contempt of the status quo orders

Holding

No contempt established; the four elements of civil contempt, especially deliberate breach, were not proved

Reasoning

The status quo order was clear and binding, and knowledge of it dispensed with personal service. However, the petitioner adduced no evidence of deliberate acts of disobedience. Mr. Andambi freely relinquished office by his own memo and email; the respondents merely accepted his decision, and no organ of the company pressured him. Accepting his departure could not constitute a deliberate act in disobedience of the order.

p. 7
02

Whether the status quo orders should be vacated

Holding

Status quo orders vacated; 1st and 2nd respondents directed to appoint an acting Managing Director pending determination of the petition

Reasoning

The status quo had changed: Mr. Andambi had vacated office and no replacement could be appointed, leaving the office vacant to the detriment of Kenya Pipeline Company. Ordering Mr. Andambi's return would plunge the court into the boardroom, while letting the 11th Interested Party take office would compromise the subject matter of the petition. Vacating the orders with a direction to appoint an acting MD balanced these concerns.

p. 8
03

Whether the amended petition should be admitted on record

Holding

Leave to admit the amended petition declined

Reasoning

The proposed amendments sought to convert Interested Parties into respondents although no relief was sought against them and only the appointing authority can explain their appointments; board members cannot be sued in two capacities in one suit, and joining them would embarrass the parties and delay resolution of the Managing Director question. The petitioner remains free to file a separate petition challenging the Board's composition.

p. 9

Legal principles established

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  • A status quo order can be the subject of contempt proceedings
  • Knowledge of a court order dispenses with the need to prove personal service in contempt proceedings
  • Four elements must be proved to succeed in civil contempt proceedings
  • Amendments converting Interested Parties into respondents without relief against them, or suing board members in dual capacities, should be declined

Court orders

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  1. 1.Dismissal of the petitioner's application dated 9th January 2020 seeking to cite the respondents and Interested Parties for contempt
  2. 2.Vacation of the status quo orders issued on 6th December 2019 and extended on 20th December 2019
  3. 3.Direction that the 1st and 2nd respondents appoint an acting Managing Director to take office pending determination of the petition
  4. 4.Declining to admit the amended petition as filed on record
  5. 5.Dismissal of both applications filed by the petitioner dated 3rd and 9th January 2020

Authorities

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Legislation

  • Public Service Commission ActSection 37(4)(d) and (e)
  • Contempt of Court Actrepeal noted

Cases cited (10)

  • Kiru Tea Factory Vs Stephen Maina Githiga & 14 Others
    (2019) eKLR
  • Econet Wireless Kenya Ltd vs. Minister for Information & Communication of Kenya & Another
    [2005] 1 KLR 828
  • Trusted Society of Human Rights Alliance Vs Cabinet Secretary for Devolution and Planning & 3 Others
    (2017) eKLR
  • Basil Criticos Vs Attorney General and 8 Others
    [2012] eKLR
  • Justus Kariuki Mate & another v Martin Nyaga Wambora & another
    [2014] eKLR
  • Waithira Mbage –V- Hillcrest Investment Limited
    (2017) eKLR
  • Lucy Nungari Ngigi & 128 Others v National Bank of Kenya Limited & Another
    [2015] eKLR
  • Joseph Kobia Nguthari –V- Kiegoi Tea Factory Company Limited and 2 Others
    (2016) eKLR
  • SALOMON vs. SALOMON
    [1897] AC 78
  • VICTOR MABACHI & ANOTHER vs. NURTURN BATES LTD
    Civil Appeal No. 247 of 2005 [2013] eKLR
Jurisdiction invoked
Not expressly stated; the court exercises first-instance judicial review/constitutional jurisdiction over the KPC Board recruitment and contempt applications.

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, "Okiya Omtatah Okoiti v Board, Kenya Pipeline Company Limited & 2 others; John Ngumi & 10 others (Interested Parties) [2020] KEELRC 1718 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1718/eng@2020-01-27

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