Lena Chemoiwo v Bomas of Kenya; General Manager Bomas of Kenya Peter Gitaa & 2 others (Contemnor) [2021] KEELRC 1150 (KLR)
The bottom line
#A Kenyan court convicted three Bomas of Kenya executives for ignoring employment orders, fining each Kshs 500,000 and ordering back pay.
What this practically means
#Executive summary
#Key legal issues
#Governing law of contempt after invalidation of the Contempt of Court Act
With the Contempt of Court Act declared unconstitutional, courts revert to Section 5 of the Judicature Act and the English law applicable, being Rule 81 of the Civil Procedure (Amendment No. 2) Rules of 2012, alongside the inherent power under Section 3A of the Civil Procedure Act
The judgment traces the statutory history: the Contempt of Court Act No. 46 of 2016 was declared unconstitutional, which had repealed Section 5 of the Judicature Act; with the repeal falling away, courts reverted to the Judicature Act provision and, by the Judicature Act's incorporation, English contempt law as at the applicable date.
Whether the contemnors wilfully disobeyed the order of 22nd April 2021
Yes - the contemnors were proved to be in contempt beyond reasonable doubt, having not set aside, discharged or appealed the order and shown no remorse
The order of 22nd April 2021 remained valid and binding, was not denied to have been known to the Respondent, and the Respondent did not seek its review or setting aside. The termination of employment and denial of access and salary breached its terms, and no remorse was shown.
Legal principles established
#- The standard of proof in contempt proceedings is beyond reasonable doubt, requiring full knowledge or notice of the order
- Knowledge of a court order by a party's advocate is sufficient for contempt proceedings
- A court order remains binding unless and until set aside, and disobedience renders the act done a nullity
- A party has no discretion to elect whether to obey a court order and wilful disobedience should be punished
Court orders
#- 1.Conviction of the three alleged contemnors for wilful disobedience of the Court orders issued on 22nd April 2021
- 2.Each contemnor sentenced to pay a fine of Kshs. 500,000/- within 3 days, in default each to serve 3 months jail sentence
- 3.Respondent and the 3 Contemnors to immediately remit withheld salary for January, February and March 2021 amounting to Kshs. 448,257/- and subsequent months not remitted for as long as the Claimant remains employed
- 4.Respondent and the 3 Contemnors to continue remitting the Applicant's monthly salary and dues as per her pay slip and grant her unlimited access to her work place until hearing and determination of the Claim
- 5.Costs of the application borne by the Respondent and the 3 Contemnors jointly and severally
- Jurisdiction invoked
- Inherent power to punish for contempt under Section 3A of the Civil Procedure Act and Section 5 of the Judicature Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lena Chemoiwo v Bomas of Kenya; General Manager Bomas of Kenya Peter Gitaa & 2 others (Contemnor) [2021] KEELRC 1150 (KLR)", Case Analysis (2021). Notice of Motion dated 15th June 2021 (ELRC, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1150/eng@2021-07-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.