Kennedy Wambua Mulwa v Kitui County Chief Officer- Health and Sanitation & 2 others; Richard Muthoka (Contemnor) [2021] KEELRC 2193 (KLR)
The bottom line
#The Employment Court in Nairobi dismissed a worker's attempt to strike out a Kitui county official's response, confirming technical objections cannot defeat legitimate applications in Kenya.
What this practically means
#Executive summary
#Key legal issues
#Whether the grounds in the preliminary objection met the Mukisa Biscuit threshold
All grounds except want of form required contested factual proof and therefore did not raise a true preliminary objection
Applying Mukisa Biscuit and George Oraro, the court noted that a preliminary objection must be a pure point of law argued on assumed facts. The petitioner's grounds - defective affidavit, conflict of interest, disobedience of orders, the application being overtaken by events, and inordinate delay - all required evidence to establish. Only the point of form qualified as a legal point.
Whether the alleged conflict of interest in the firm representing the 2nd and 3rd Respondents could ground a preliminary objection
The issue is factual and could not be raised by way of preliminary objection; the June Mawia Munyao case was distinguished
The court held that conflict of interest requires examination of facts such as the interest of parties and confidential information to be protected. It distinguished June Mawia Munyao because there the appointment of counsel by both the County Government and the Public Service Board was not in dispute, and the circumstances of the Board's involvement differed from the instant case where the Board was not involved in the departmental transfer.
Whether failure to comply with Order 51 Rule 13(2) rendered the application fatally defective
The non-compliance was a mere technicality not affecting the substance of the application; the application was not struck out
Relying on Order 51 Rule 10(2) of the Civil Procedure Rules, the court found that failure to comply with Order 51 Rule 13(2) was a mere technicality which did not affect the substance of the impugned application, and it would be harsh to strike out the application merely because some words were not captured in it.
Whether the contemnor should be denied audience for failing to purge contempt
The contemnor could not be denied audience because the application itself sought to exonerate him from the alleged contempt
While courts have denied litigants audience until they purge contempt, the court found it would be unfair to deny the contemnor audience where the impugned application was his attempt to exonerate himself, especially since the petitioner acknowledged receiving a letter from Dr. Owino reinstating him pursuant to the court order.
Legal principles established
#- A preliminary objection must raise a pure point of law on assumed facts and cannot be raised where facts need to be ascertained or judicial discretion is sought
- No application shall be defeated on a technicality or for want of form that does not affect its substance
- A party who is cited for contempt may be heard on an application seeking to exonerate himself from the alleged contempt
Court orders
#- 1.The petitioner's Notice of Preliminary Objection dated 30.3.2020 is overruled and dismissed with costs
- Jurisdiction invoked
- Not expressly stated; the judgment indicates the matter arises in contempt proceedings before the ELRC, with delivery of the ruling governed by Rule 28(3) of the ELRC Procedure Rules and the Chief Justice's Covid-19 directions of 15th April 2020
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kennedy Wambua Mulwa v Kitui County Chief Officer- Health and Sanitation & 2 others; Richard Muthoka (Contemnor) [2021] KEELRC 2193 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2193/eng@2021-02-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.