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ELRCDismissedNot stated in the judgment (Judicial Review application)· [2020] KEELRC 1789 (KLR)

Joel Ashiachi Kusimba v Cabinet Secretary for Labour and Social Protection; Child Welfare Society of Kenya (Interested Party) [2020] KEELRC 1789 (KLR)

Employment and Labour Relations Court of Kenya
2 January 2020
HWHellen Wasilwa
2,034 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a contempt application because the people accused of defying a court order were never personally served with it.

What this practically means

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Executive summary

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The Ex-parte Applicant, Joel Ashiachi Kusimba, moved the court by Notice of Motion dated 18th October 2019 seeking to have Ibrahim Maalim, Shakila Abdalla, Cheryl Majiwa, Doris Kinuthia and Peter Molu Ibrae committed to prison for six months for disobeying the court order of 8th October 2019, by which the court had stayed the Respondent's appointment of the named persons as members of the Board of Directors of the Child Welfare Society of Kenya pending judicial review by way of certiorari. The Applicant contended that the order was personally served on the named persons on 9th October 2019, after which they continued to transact business as board members, sent the Society's CEO on compulsory leave, appointed acting officers, changed bank signatories and obstructed the Board of Trustees. The Respondent, through the Principal Secretary, State Department for Social Protection, denied service on the individuals, maintained that the appointments were stayed and nullified, and argued that the named persons were not parties to the proceedings and that wilful disobedience had not been proved to the required standard. The court noted the affidavit of service showed that only the Permanent Secretary, Ministry of Labour was served, yet also observed there was evidence the suspended board members continued to act and make resolutions contrary to the order. Ultimately the court held that committal could not lie because there was no indication the named individuals were served with the order, and dismissed the contempt application on 2nd January 2020. No costs order appears in the judgment.

Key legal issues

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01

Service of the court order as a precondition to a contempt finding

Holding

The contempt application fails because there is no evidence the alleged contemnors were personally served with the order of 8th October 2019; only the Permanent Secretary, Ministry of Labour was served.

Reasoning

The court examined the affidavit of service sworn by Willis Agayi and found that the person served was the Permanent Secretary, Ministry of Labour, not the named individuals. Although the court found evidence that the suspended board members continued to act contrary to the order, it held that committal cannot lie against persons not shown to have known of the order, and dismissed the application.

p. 3
02

Standard of proof in contempt proceedings

Holding

Contempt carrying committal to jail must be proved beyond the civil standard; the conduct must be deliberate and wilful.

Reasoning

Relying on the Supreme Court decision in Republic v Ahmad Abolfathi Mohammed & another, the Respondent argued, and the court accepted in its analysis, that because liberty is at stake, the standard of proof is higher than in civil cases and the power to commit must be exercised as a last resort, requiring proof of wilful flouting of the order.

p. 3

Legal principles established

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  • A person cannot be held liable in contempt of a court order unless it is established that the order was served on, or brought to the knowledge of, that person.
  • Contempt attracting committal to jail must be proved to a high standard, demonstrating wilful, deliberate disobedience of a court order.

Court orders

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  1. 1.The application for contempt is dismissed

Authorities

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Legislation

  • Legal Notice No. 58 of 2014sections 7(1)(a), (b) and (c); 7(2)

Cases cited (7)

  • Sam Nyamweya & 3 others v Kenya Premier League Limited & 2 Others
    [2015] eKLR
  • Stewart Robertson v Her Majesty's Advocate
    2007 HCAC63
  • Republic v Kenya School of Law & 2 others ex-parte Juliet Wanjiru Njoroge & 5 others
    [2015] eKLR
  • Macfoy v United African Company
    Appeal No. 67 of 1960
  • David Oloo Onyango v Attorney General
    [1987] eKLR
  • Kiai Mbai & 2 others v Gichuhi Macharia & another
    [2015] eKLR
  • Republic v Ahmad Abolfathi Mohammed & another
    [2018] eKLR
Jurisdiction invoked
Judicial review jurisdiction - leave granted to apply for judicial review by way of Certiorari (court sitting as a judicial review court; specific constitutional/statutory provision not cited in the judgment)

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, "Joel Ashiachi Kusimba v Cabinet Secretary for Labour and Social Protection; Child Welfare Society of Kenya (Interested Party) [2020] KEELRC 1789 (KLR)", Case Analysis (2020). Not stated in the judgment (Judicial Review application). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1789/eng@2020-01-02

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