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ELRCDismissedApplication dated 28/4/2020 (in Petition referred to Employment and Labour Relations Court, Kisumu)· [2021] KEELRC 2007 (KLR)

Daniel Omondi Ogada & 2 others v County Assembly of Homabay & 2 others [2021] KEELRC 2007 (KLR)

Employment and Labour Relations Court
11 March 2021
MNMATHEWS N. NDUMA
1,290 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This first-instance ruling by Mathews N. Nduma, J of the Employment and Labour Relations Court disposes of a notice of motion dated 28/4/2020 seeking committal of Cyprian Otieno Awiti, the 3rd respondent (Governor of Homa Bay County), for contempt of an interim order issued on 2/12/2019 restraining removal of the petitioners from the Homa Bay County Public Service Board. The applicants alleged that despite service of the order with a penal notice, the 3rd respondent appointed one Elijah Kodo as Chairman on 22/4/2020. The respondents, through the County Secretary Isiah Ogwe, showed that the order had been varied by consent on 20/12/2019 to permit recruitment of other board members whose terms had expired, provided the petitioners' positions were unaffected. The court perused Gazette Notice No. 3108 of 17/4/2020 and confirmed only three members were recruited, with no replacement of the 1st petitioner as Chairman; the allegation of an online announcement of Kodo's appointment was unsupported by documentation. Applying the principle that contempt is a criminal offence proved beyond reasonable doubt, the court found no wilful disobedience and dismissed the application with costs in the cause. The petition itself remains for hearing before the ELRC judge at Kisumu. The ruling was delivered online pursuant to COVID-19 directions. Authorities on obedience of court orders (Hadkinson, Mutitika, Econet Wireless) were cited but not expressly adopted as decisive.

Key legal issues

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01

Whether contempt of court was proved

Holding

The application was dismissed; no wilful disobedience of the varied order was proved to the criminal standard

Reasoning

The order of 2/12/2019 was varied by consent on 20/12/2019 to permit recruitment of other board members provided the petitioners' positions were not affected. The gazette notice confirmed recruitment of three members only, with no replacement of the 1st petitioner as Chairman. The facebook/website allegation was unsupported by documentation.

p. 2
02

Standard and burden of proof in contempt proceedings

Holding

Burden lies on he who alleges; standard is beyond reasonable doubt as contempt is criminal in nature

Reasoning

The court framed contempt as a serious criminal offence, importing the criminal standard despite the civil contempt application context.

p. 2

Legal principles established

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  • Contempt of court is a criminal offence and must be proved beyond reasonable doubt by the party alleging it
  • Court orders must be obeyed as a fundamental principle of the rule of law

Court orders

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  1. 1.The application dated 28/4/2020 is dismissed with costs in the cause
  2. 2.The parties have filed submissions on the petition itself and the matter should be placed before the Employment and Labour Relations Court judge at Kisumu for hearing and determination of the petition

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 18
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (3)

  • Hadkinson vs Hadkinson
    (1952) 2 ALL ER 567, 573
  • Mutitika vs Baharini Limited
    (1985) KLR (CA)
  • Econet Wireless Kenya Ltd. vs Minister of Information Communication of Kenya and Another
    (2005) eKLR
Jurisdiction invoked
Inherent contempt jurisdiction of the Court; Article 159(2)(d) and Article 48 of the Constitution; Section 18 of the Civil Procedure Act (for electronic delivery)

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, "Daniel Omondi Ogada & 2 others v County Assembly of Homabay & 2 others [2021] KEELRC 2007 (KLR)", Case Analysis (2021). Application dated 28/4/2020 (in Petition referred to Employment and Labour Relations Court, Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2007/eng@2021-03-11

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