Agnes Muthoni & 34 others v Kenya Medical Research Institute (KEMRI); Union of National Research and Allied Institutes Staff of Kenya (UNRISK) (Interested Party) [2021] KEELRC 21 (KLR)
The bottom line
#KEMRI's acting director was held in contempt for ignoring court orders to reinstate 34 sacked workers, proving Kenyan institutions cannot outwait or ignore court judgments.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the respondent's application dated 14th October 2021 for stay of execution of the ruling of 14th October 2021 pending intended appeal should be granted
- 2.Whether the claimants' application dated 1st November 2021 for contempt proceedings against the Acting Director General, Prof. Samuel Kariuki, should be allowed
- 3.Whether court orders directed at the respondent through its former director bind the current/acting holder of the office of director
- 4.Whether the court was functus officio or lacked jurisdiction to order re-engagement and payment of salaries
Key legal issues
#Whether the conditions for a stay of execution under Order 42 Rule 6 were met
The stay application was dismissed; the respondent failed to demonstrate substantial loss, the primary test, though it filed the application without delay
Order 42 Rule 6 requires demonstration of substantial loss, security for due performance, and absence of delay. Only the absence of delay was met. Substantial loss is primary and without it the other tests cannot stand, as held in National Industrial Credit Bank Ltd v Aquinas Francis Wasike and James Wagalwa v Agnes Naliaka Cheseto. The grounds raised (jurisdiction, functus officio, impracticability) were appeal grounds, not proof of loss.
Whether the orders of 14th October 2021 bound the current acting director despite naming the former director
Yes; orders against a body corporate bind every director and officer under section 20(8) of the Employment and Labour Relations Court Act, 2011; the office remains intact even when the officeholder changes
The respondent is a body corporate and state corporation whose officers act in perpetuity. The person holding the office of director may change but the office remains. Section 20(8) requires every director and officer of a body corporate to comply with orders directed to it, and section 20(9) imposes vicarious liability for offences unless consent/connivance and due diligence are proved. The argument that the orders did not bind the office of Director General was rejected.
Whether the court was functus officio or lacked jurisdiction under section 12(3)(vii) to order re-engagement and salary payments
No; the judgment of 13th May 2010 allowing reinstatement stands, and orders directing compliance are part of its execution; the court is not functus officio
The respondent's jurisdictional objections could not hold because the judgment allowing reinstatement was delivered on 13th May 2010 and is not a new matter. Orders seeking compliance with a judgment are part of execution. The court held it was not functus officio and that the respondent cannot rely on the passage of time to avoid compliance.
Whether the respondent and its acting director were guilty of contempt of the orders of 14th October 2021
Yes; the four elements in Samuel M. N. Mweru v National Land Commission were satisfied, and the acting director was found guilty of contempt, to appear for mitigation and sentencing
Knowledge of the orders was not disputed as the respondent's advocate was in court when they were issued; breach was not disputed as the respondent had not complied to date. The claim that the orders were unclear failed because the respondent never moved the court for clarification, and the orders were against the respondent as a body corporate. The current director had knowledge of the orders, so personal liability attaches.
Legal principles established
#- Where an order is directed to a body corporate, every director and officer of the body corporate is required to comply with it, so the holder of the office of director is bound even where the order named a former officeholder
- Substantial loss is the primary and cornerstone condition for granting a stay of execution
- Four elements must be proved before contempt orders issue: clear and unambiguous terms, knowledge/notice, breach, and deliberateness
- A party who considers a court order unclear must move the court appropriately rather than ignore it
Court orders
#- 1.The respondent's application dated 14th October 2021 seeking stay of execution is dismissed with costs
- 2.The ruling/orders of 14th October 2021 stand and remain valid
- 3.The claimants' application dated 1st November 2021 is allowed
- 4.The respondent's Director, a position currently held by Ag. Director Prof. Samuel Kariuki, is found guilty of contempt of court of the orders issued on 14th October 2021
- 5.Prof. Samuel Kariuki to appear in court on 16th December 2021 for mitigation and sentencing
- 6.Orders of 14th October 2021 remain valid
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court Act, 2011 (including sections 12(3)(vii) and 20(8)-(9))
Relief refused
#Stay of execution of the ruling of 14th October 2021 pending intended appeal
The respondent failed to demonstrate substantial loss, the primary test under Order 42 Rule 6 of the Civil Procedure Rules, and the grounds raised were matters for appeal, not stay
Discharge or striking out of the contempt application on grounds that Prof. Kariuki was not personally named in the orders
The orders were against the respondent as a body corporate and bind the holder of the office of director under section 20(8) of the Employment and Labour Relations Court Act, 2011; the claim that the orders did not bind the office was rejected as absurd
Costs
The respondent's application dated 14th October 2021 dismissed with costs (costs of the contempt application not expressly stated).
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The court finds no matter to allow stay of execution and application dated 14 th October, 2021 by the respondent is without merit and is hereby dismissed with costs.
The upshot of this is that application dated 1 st November 2021 is hereby allowed. I find the Respondent's Director and currently a position held by the Ag. Director, Prof. Samuel Kariuki to be guilty of contempt of court of the order orders of this court issued on 14th October 2021. He is to appear in court on 16th December, 2021 for mitigation and sentencing.
Pursuant to section 20(8) of the Employment and Labour Relations Court Act, 2011 cited above, the holder of the office of director of the respondent at this instance is directed in accordance with the ruling of 14 th October, 2021.
The orders seeking the respondent to comply with the judgement of the court is part of its execution. The court is not functus officio. The respondent cannot hang on time to avoid compliance thereof.
The condition that substantial loss to be suffered must be demonstrated because this is primary and without it the other tests cannot stand.
It is trite that where a court order is not clear the concerned parties ought to move the court appropriately. The Respondent in the instant case did not do so.
Courts punish for contempt to uphold the dignity and authority of the court, ensure compliance with directions of the court, observance and respect of due process of law, and maintain public confidence in the administration of justice by courts.
Issues in the judgment
#The judgment refers inconsistently to the same director, variously as Dr. Yeri Israel Kombe, Dr. Yeri Israel Yombe and Dr. Yombe, and to Prof. Samuel Kariuki as 'Prof. Samuel Muriuki' in the claimants' application, while the affidavit names him Prof. Samuel Kariuki
The court cites 'section 20(8) and (9) of the Employment and Labour Relations Act, 2011' and elsewhere 'section 20(8) of the Employment and Labour Relations Court Act, 2011' - the statute is named inconsistently
The judgment describes the claim as filed on 19th February 2010 and judgment delivered on 13th May 2010, the same year, while elsewhere stating the claimants were terminated on 17th December 2009 and referencing 'basic pay from 15 th July 2015' versus '15"' June 2015' in the application - dates are inconsistent between the parties' accounts
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Agnes Muthoni & 34 others v Kenya Medical Research Institute (KEMRI); Union of National Research and Allied Institutes Staff of Kenya (UNRISK) (Interested Party) [2021] KEELRC 21 (KLR)", Case Analysis (2021). Not stated in the extract (claim filed 19th February 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/21/eng@2021-12-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.