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ELRCPartially AllowedJR Misc. Application (arising from ELRC Cause No. 564 of 2011 and Misc. Application No. 128 of 2017)· [2021] KEELRC 1114 (KLR)

Henry Musemate Murwa v Francis Owino, Principal Secretary, Ministry of Public Service, Youth And Gender Affairs & another [2021] KEELRC 1114 (KLR)

Employment and Labour Relations Court
6 August 2021
MOMaureen Onyango
3,083 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court found a Principal Secretary guilty of disobeying a payment order, confirming that ignoring court orders can lead to personal consequences.

What this practically means

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Executive summary

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The Applicant, a former civil servant whose employment was terminated, moved the Court by Amended Notice of Motion dated 6th March 2019 seeking a finding that Dr. Francis O. Owino, Principal Secretary, Ministry of Public Service Youth and Gender Affairs, and the Hon. Attorney General were in contempt of mandamus orders issued on 26th July 2018 directing payment of decreed sums of Kshs.7,033,338 plus interest arising from ELRC Cause No. 564 of 2011, with committal to civil jail and denial of audience as consequential relief. The Respondents opposed on grounds that Section 5 of the Judicature Act stood repealed by the since-nullified Contempt of Court Act 2016, that the application offended Article 50, that contempt is personal and requires personal service and response, and that it was unconstitutional to commit a public officer for a public debt. The Court framed three issues: the validity of Section 5 of the Judicature Act; whether Dr. Owino was in contempt; and entitlement to the orders sought. It held that the nullification of the Contempt of Court Act reinstated Section 5 of the Judicature Act. Applying the established test for civil contempt, and finding that knowledge of the order sufficed without personal service, that the two underlying judgments were unappealed and valid, and that no affidavit rebutted the application, the Court found Dr. Owino guilty of disobedience of the orders of 26th July 2018 as the accounting officer, holding that the prayers did not seek personal settlement of the debt. It did not immediately commit him; instead it directed him to appear for sentencing on 28th September 2021. No express costs order was recorded.

Key legal issues

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01

Validity of Section 5 of the Judicature Act

Holding

Section 5 of the Judicature Act remains in force despite having been repealed by the Contempt of Court Act 2016, because that Act was declared unconstitutional in its entirety.

Reasoning

The Contempt of Court Act 2016 repealed Section 5 of the Judicature Act, but was itself declared unconstitutional in Kenya Human Rights Commission v Attorney General. A declaration of unconstitutionality renders the impugned statute a nullity ab initio, so the repeal of Section 5 had no legal effect and the provision was reinstated. The court aligned itself with the reasoning in Republic v Kajiado County ex parte Kilimanjaro Safari Club Limited, noting that the common law substance survives under Section 3 of the Judicature Act.

p. 3
02

Whether the Principal Secretary was guilty of contempt of the mandamus orders of 26th July 2018

Holding

Dr. Francis O. Owino, as accounting officer, was guilty of disobedience of the orders.

Reasoning

The test for civil contempt requires proof of the terms of the order, knowledge of those terms, and breach. Two valid, unappealed and un-set-aside judgments existed in the Applicant's favour, and Respondents' Counsel had participated throughout and admitted the debt. Personal service was unnecessary since knowledge of the order suffices per Shimmers Plaza and Basil Criticos. The Respondents filed no affidavit to rebut the averments; counsel's submission that Dr. Owino was no longer Principal Secretary was unsupported by evidence.

p. 5
03

Whether it is unconstitutional to cite a public officer for contempt in respect of a public debt

Holding

Not unconstitutional: the public officer is held accountable in his capacity as accounting officer, not personally liable for the debt.

Reasoning

The Respondents argued that imprisoning a public officer for a government debt violated Articles 25, 28, 29, 39 and 50(1). The court held this missed the point because the prayers did not require the alleged contemnor to settle the debt personally; rather, they targeted his failure, as accounting officer, to obey the order requiring him to ensure payment. Citing the PS and Attorney General is the established practice for enforcing decrees against government.

Legal principles established

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  • The nullification of the Contempt of Court Act 2016 reinstated Section 5 of the Judicature Act, which therefore remains in force
  • Knowledge of a court order suffices for contempt proceedings; strict proof of personal service is no longer necessary
  • Submissions cannot take the place of evidence

Court orders

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  1. 1.Dr. Francis O. Owino found guilty of disobedience of the Court's Orders of 26th July 2018
  2. 2.Dr. Francis O. Owino directed to appear in Court on 28th September 2021 for purposes of sentencing

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50
  • Constitution of Kenya, 2010Articles 28, 29, 39 and 50(1)
  • Constitution of Kenya, 2010Article 25
  • Constitution of Kenya, 2010Article 156
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Judicature ActSection 5
  • Judicature ActSection 3
  • Contempt of Court Act No. 46 of 2016Section 38
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (11)

  • James Kanyitta/Kanyiita Nderitu & Another v Marion/Marios Philotas Ghikas & Another
    [2016] eKLR
  • Faiz Ali Taib v The Hon. Attorney General & Another
    Misc. App. No. 64 of 2012 (Mbs)
  • Lucy Nduta Ng’ang’a v The Principal Secretary Ministry of Interior and the Hon. Attorney General
    JR No. 28 of 2019
  • Solomon Muriithi Gitandu & Another v Jared Maingi Mburu
    [2017] eKLR
  • Braeburn Limited v Gachoka and another
    (2007)
  • Kenya Human Rights Commission v Attorney General & another
    [2018] eKLR
  • Republic v Kajiado County & 2 Others ex parte Kilimanjaro Safari Club Limited
  • Samuel M. N. Mweru & Others v National Land Commission & 2 others
    [2020] eKLR
  • Shimmers Plaza Limited v National Bank of Kenya Limited
    [2015] eKLR
  • Basil Criticos v Attorney General and 8 Others
    [2012] eKLR
  • Daniel Toroitich Arap Moi v Mwangi Stephen Mureithi & Another
    (2014) eKLR
Jurisdiction invoked
Enforcement of this Court's orders of mandamus issued on 26th July 2018 in JR Misc. Application No. 128 of 2017, pursuant to Section 5 of the Judicature Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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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, "Henry Musemate Murwa v Francis Owino, Principal Secretary, Ministry of Public Service, Youth And Gender Affairs & another [2021] KEELRC 1114 (KLR)", Case Analysis (2021). JR Misc. Application (arising from ELRC Cause No. 564 of 2011 and Misc. Application No. 128 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1114/eng@2021-08-06

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