Allan Pamba v Kenya Hospital Association for and on behalf of The Nairobi Hospital & another [2021] KEELRC 1505 (KLR)

The order was emailed to the 1st Respondent's advocates on 4th December 2020 at 3:52pm and a physical Affidavit of Service was filed. Although the IT manager deponed he was away and one email address was misquoted, the Court found the Respondents were duly served under the Civil Procedure (Amendment) Rules, 2020 and the Electronic Case Management Practice Directions, 2020, relying on Justus Kariuki Mate v Martin Nyaga Wambora on the efficacy of the Affidavit of Service.

Relying on Tribe Hotel Ltd v Josphat Cosmas Onyango and the Wambora authorities, the Court held that orders bind unless and until set aside, and acts done in disobedience are nullities. Since the order of 4th December 2020 had not been discharged, the Respondents were obliged to obey it and the subsequent appointment contravened it.

The Court tempered the Claimant's request for six months' civil jail against the demonstrated contempt, punishing it through a punitive fine while preserving the possibility of committal should the fine not be paid within seven days. This reflects the seriousness of contempt while preserving proportion in the sanction.

The Court engaged with the parties' competing authorities, including Shimmers Plaza Ltd v National Bank of Kenya Ltd on proof beyond reasonable doubt and Stewart Robertson v Her Majesty's Advocate on wilful defiance, but found on the facts that service and notice were established and that the Respondents acted in contravention of the subsisting order.

The Respondents contended that the interviews (2nd November 2020) and contract (25th November 2020) predated the order. However, the Claimant's assertion that the 2nd Respondent personally issued an inter-office memorandum on 7th December 2020 confirming the appointment, and the implementation of the appointment after service, grounded the finding of contravention of the subsisting order.