Clyde Alielo Khayiya & 27 others v Andrew Makanya Chairman Board of Management Ngara Girls High School & another [2021] KEELRC 1746 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Competence of the contempt application - leave and service requirements
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
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.
Knowledge of the court orders by the alleged contemnors
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
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.
Whether the declaration of redundancy breached the court orders
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
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.
Legal principles established
#- 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
#- 1.The Notice of Motion dated 23/3/2020 seeking committal of the respondents for contempt is dismissed
- Jurisdiction invoked
- Section 5 of the Judicature Act (contempt of court jurisdiction, following repeal of the Contempt of Court Act, 2015)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.