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ELRCDismissedCause No. 1667 of 2011 - Notice of Motion dated 23/3/2020· [2021] KEELRC 1746 (KLR)

Clyde Alielo Khayiya & 27 others v Andrew Makanya Chairman Board of Management Ngara Girls High School & another [2021] KEELRC 1746 (KLR)

Employment and Labour Relations Court
17 May 2021
3,333 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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The Employment Court refused to jail two officials for contempt because the applicants could not prove the officials were personally served with or even knew about the court orders.

What this practically means

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Executive summary

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The claimants in Cause No. 1667 of 2011, through deponent Clyde Alielo Khayiya, moved the Employment and Labour Relations Court by Notice of Motion dated 23/3/2020 seeking committal of Professor Andrew Makanya and Dr. Beatrice Ndiga to civil jail for six months for contempt of court orders issued on 18/11/2011 and 28/3/2014 by Rika, J., which had reinstated five claimants whose contracts were terminated mid-suit and directed payment of their salaries. The applicants alleged that the 1st claimant was denied entry to the school, placed on compulsory leave, and ultimately declared redundant, in willful defiance of the orders. The respondents, through Dr. Ndiga, denied knowledge of the orders, deposing that she became Principal in January 2019 after two other principals and that the 1st claimant's exit resulted from a lawful staff rationalization exercise, with notice to the Labour office and payment of terminal benefits. The court framed three issues: competence of the application, proof of contempt, and reliefs. Applying the Court of Appeal's decision in Christine Wangari Gachege, the court held that after the repeal of the Contempt of Court Act, 2015, contempt is governed by Section 5 of the Judicature Act importing English Civil Procedure Rules; leave was unnecessary for breach-of-judgment applications but personal service on the alleged contemnors was mandatory. No personal service on Makanya was proved, no nexus to him disclosed, and Ndiga's sworn ignorance of the orders was unrebutted. The redundancy was held to be a new, distinct matter outside the old cause; the applicant was free to file a fresh suit. The application was dismissed with costs in the cause.

Key legal issues

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01

Competence of the contempt application - leave and service requirements

Holding

Leave was not necessary but personal service of the application on the alleged contemnors was mandatory; there was no evidence of personal service on Professor Makanya

Reasoning

Following the Court of Appeal in Christine Wangari Gachege, the applicable law after repeal of the Contempt of Court Act is Section 5 of the Judicature Act importing English Civil Procedure Rules. Rule 81.4 (breach of judgment) requires no leave, but Rule 81.8 requires personal service. No evidence of personal service existed, and no nexus to Makanya was disclosed.

p. 5
02

Knowledge of the court orders by the alleged contemnors

Holding

The applicant failed to demonstrate that the alleged contemnors were aware of the orders of 18/11/2011 and 28/3/2014; Dr. Ndiga deposed she was unaware of them

Reasoning

The burden lay on the applicant to show service of the orders on the contemnors. There was no deposition in the supporting or supplementary affidavit that the orders were served on either contemnor. Ndiga, appointed Principal on 8/1/2019, swore she was never made aware of the orders, and there had been two other principals and changed Board members since the suit was filed.

p. 5
03

Whether the declaration of redundancy breached the court orders

Holding

The redundancy was a new and distinct matter outside Cause No. 1667 of 2011; contempt was not proved and the remedy, if any, is a fresh suit

Reasoning

The redundancy notice was given to the Labour office and to the applicant, who was paid terminal benefits he acknowledged. The demand letter of 13/2/2020 treated the retrenchment as a new matter. The applicant did not prove willful defiance of the old orders, and the court noted neither party had taken steps to conclude the main suit since the claimant's case closed on 7/2/2013.

p. 5

Legal principles established

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  • Since the repeal of the Contempt of Court Act, 2015, applications for contempt of court are governed by Section 5 of the Judicature Act, importing the English Civil Procedure Rules
  • No leave is required for committal applications relating to breach of a judgment, order or undertaking under Rule 81.4 of the Civil Procedure (Amendment No.2) Rules, 2012 (England), but personal service of the application on the alleged contemnor is required
  • The applicant in contempt proceedings bears the onus of proving the alleged contemnors were aware of the court orders and that their breach was willful, on a balance of probabilities

Court orders

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  1. 1.The Notice of Motion dated 23/3/2020 seeking committal of the respondents for contempt is dismissed

Authorities

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Legislation

  • Contempt of Court ActSection 38
  • Judicature ActSection 5(1)
  • English Civil Procedure RulesPart 81, Rule 81.4, Rule 81.8
  • Civil Procedure (Amendment No.2) Rules, 2012 (England)Rule 81.4
  • Constitution of KenyaArticle 159(2)(d), Article 48
  • Civil Procedure RulesOrder 21 rule 1
  • Civil Procedure ActSection 18

Cases cited (1)

  • Christine Wangari Gachege –vs- Elizabeth Wanjiru Evans and 11 Others
    [2014] eKLR
Jurisdiction invoked
Section 5 of the Judicature Act (contempt of court jurisdiction, following repeal of the Contempt of Court Act, 2015)

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, "Clyde Alielo Khayiya & 27 others v Andrew Makanya Chairman Board of Management Ngara Girls High School & another [2021] KEELRC 1746 (KLR)", Case Analysis (2021). Cause No. 1667 of 2011 - Notice of Motion dated 23/3/2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1746/eng@2021-05-17

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