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ELRCDismissedNot stated in the judgment as provided· [2021] KEELRC 1228 (KLR)

Bernard M. Ngore v Cabinet Secretary, Ministry of Industrialization, Trade and Enterprise Development & another; Betty C. Maina & another (Alleged Contemnor) [2021] KEELRC 1228 (KLR)

Employment and Labour Relations Court
16 July 2021
2,060 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 case against two senior government officials because the applicant failed to prove they deliberately disobeyed a court order.

What this practically means

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Executive summary

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This ruling by Maureen Onyango J of the Employment and Labour Relations Court, Nairobi, determines a Notice of Motion dated 19th January 2021 in which the Petitioner, the appointed Chairman of the National Standards Council, sought contempt findings against Betty C. Maina (Cabinet Secretary) and Dr. Francis O. Owino (Principal Secretary), their committal to civil jail for up to six months and/or a fine of Kshs. 500,000 each, and a declaration that any decision of the National Standards Council taken without a properly constituted Council is null and void. The contempt application arose from conservatory orders issued by Nzoki Wa Makau J on 3rd December 2020 staying the implementation of Gazette Notice No. 9589 revoking the Petitioner's appointment. The court set out the four elements of civil contempt - clear and unambiguous terms, knowledge of the order, breach, and deliberate conduct - and the heightened (but not criminal) standard of proof. It found the orders were clear and that the Alleged Contemnors had knowledge of them even without personal service, holding that knowledge suffices. However, no wilful disobedience was established: the 9th December 2020 letter suspending Board meetings was an attempt to manage uncertainty between two claimants to the Chairpersonship, the Petitioner did not prove he was excluded from meetings, and he in fact chaired the Board meeting of 28th January 2021. The contempt application was dismissed, with costs to abide the outcome of the petition.

Key legal issues

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01

Elements and standard of proof for civil contempt

Holding

The applicant must prove the terms of the order, the respondent's knowledge of those terms, breach of the order, and deliberate conduct; the standard is higher than the civil standard but not the criminal standard

Reasoning

Relying on Mativo J. in Samuel M. N. Mweru & Others v National Land Commission and Katsuri Limited v Kapurchand Depar Shah, the court set out the four elements of civil contempt and held that willfulness and bad faith are normally inferred once the elements are proved, but can be rebutted on a balance of probabilities. Because contempt has penal consequences, the standard exceeds the ordinary civil standard.

p. 2
02

Whether personal service of the orders was required

Holding

Personal service was not required; knowledge of the orders sufficed, and the Alleged Contemnors had such knowledge

Reasoning

Following Shimmers Plaza Limited v National Bank of Kenya Limited, the court held that notice of an order can be proved by any means that brought the order to the person's knowledge, including representation by counsel or being copied in correspondence. The 2nd Alleged Contemnor's own letter of 9th December 2020, copied to the Cabinet Secretary, demonstrated knowledge of the orders.

p. 3
03

Whether the Alleged Contemnors wilfully disobeyed the orders

Holding

No wilful disobedience was established; the contempt application failed

Reasoning

The court found the 9th December 2020 letter was an attempt to hold off Board business when two persons claimed the Chairpersonship, not a breach of the orders. The photograph of the virtual meeting attendance list and physical attendance sheet did not show the Petitioner attempted to join and was excluded, and it was not denied that the Petitioner chaired the Board meeting of 28th January 2021.

p. 4

Legal principles established

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  • Four essential elements must be proved to establish civil contempt: clear and unambiguous terms of the order binding on the defendant, knowledge or notice of the terms, breach of the order, and deliberate conduct
  • The standard of proof in contempt proceedings is higher than in ordinary civil cases but lower than the criminal standard of proof beyond reasonable doubt
  • Personal service of a court order is no longer necessary to prove contempt; knowledge of the order suffices
  • The power to commit an alleged contemnor must be exercised only on evidence beyond peradventure because a finding of guilt may lead to denial of liberty

Court orders

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  1. 1.The contempt application is dismissed
  2. 2.Costs of the application will abide the outcome of the petition

Authorities

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Legislation

  • Standards ActSections 6 and 7
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure (Amendment No. 2) Rules, 2012Rule 81.8
  • Constitution of KenyaArticles 48 and 159(2)(d)

Cases cited (4)

  • Samuel M. N. Mweru & Others v National Land Commission & 2 Others
    [2020] eKLR
  • Katsuri Limited v Kapurchand Depar Shah
    [2016] eKLR
  • Shimmers Plaza Limited v. National Bank of Kenya Limited
    (2015) eKLR
  • Avery v. Andrews
    (1882) 51 LJ Ch. 414
Jurisdiction invoked
Original contempt jurisdiction in a pending petition; the court referred to Article 159(2)(d) and Article 48 of the Constitution in delivering the ruling

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, "Bernard M. Ngore v Cabinet Secretary, Ministry of Industrialization, Trade and Enterprise Development & another; Betty C. Maina & another (Alleged Contemnor) [2021] KEELRC 1228 (KLR)", Case Analysis (2021). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1228/eng@2021-07-16

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