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ELRCDismissedCause No. 133 (N) of 2008· [2021] KEELRC 2238 (KLR)

Aphonse Mwangemi Munga & 10 others (Suing on behalf and on behalf of 367 employees of African Safari Club Limited) v African Safari Club Limited & 3 others [2021] KEELRC 2238 (KLR)

Employment and Labour Relations Court of Kenya
29 January 2021
2,382 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled that failing to pay awarded court costs is not contempt of court, and litigants cannot be barred from hearings over unpaid costs.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi (Onyango J, 29 January 2021) determined an application dated 27 June 2020 by Counsel for the claimants (Henry Kurauka) seeking, among other orders, that Sheila Nkatha Muthee (administrator of the estate of Karl Jacobs Ruedin), Roland Ruedin and Hanspeter Ruedin be denied audience before the court and be compelled to pay Kshs.5,266,359 in costs certified by the Deputy Registrar on 8 December 2016 in Court of Appeal No. 314 of 2014, arising from orders of this court. The Applicant contended the Respondents were in contempt and had abused court process by filing multiple suits and insulting judges and advocates, and invoked the Succession Act to argue the administrator must pay estate debts. The Respondents opposed through the replying affidavit of Ms Muthee, asserting rights of audience under Articles 25(c), 48 and 50(1) of the Constitution, and alleging fraudulent orders and unaccounted sale of estate assets worth over Kshs.557 million. The court held there was no demonstration of contempt or abuse of process, that failure to pay taxed costs is neither, and that the application was made in bad faith to block a pending application by the Respondents. The application was dismissed with costs. The court additionally admonished the 2nd Respondent and her Counsel for imputing fraud on a sitting judge, terming such allegations contempt in the face of the court.

Key legal issues

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01

Whether non-payment of taxed costs amounts to contempt of court

Holding

Non-payment of taxed costs is not contempt; contempt requires wilful disobedience of a clear court order.

Reasoning

The court found no evidence that the Respondents disobeyed any order of the court. The application rested solely on non-payment of costs certified in the Court of Appeal, which the court held is not contempt nor abuse of process. The court also found the application was intended to block a pending application by the Respondents, evidencing bad faith.

p. 4
02

Whether the court may deny a litigant audience

Holding

The court cannot refuse to hear a litigant; its jurisdiction is to hear disputes and facilitate just, expeditious and proportionate resolution.

Reasoning

The Respondents argued, and the court accepted in substance, that the principal objective of the court under Section 3 of the Employment and Labour Relations Court Act is facilitation of just, expeditious, efficient and proportionate resolution of disputes, and refusing audience to a litigant cannot serve that objective. The court found the request to deny audience misplaced.

p. 3
03

Civility towards the court and officers of the court

Holding

Imputing fraudulent intent on a sitting judge in proceedings where the judge cannot respond is contemptuous in the face of the court and brings the court into disrepute.

Reasoning

The court took exception to the tone of the 2nd Respondent's replying affidavit and submissions, which accused Counsel and unnamed judges of fraud and lack of integrity. The court admonished that grievances against officers of the court should be raised with the relevant authorities, and counsel must be courteous in pleadings and orally.

p. 4

Legal principles established

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  • Failure of a party to pay taxed costs does not constitute contempt of court orders or abuse of court process.

Court orders

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  1. 1.The application dated 27th June 2020 is dismissed with costs

Authorities

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Legislation

  • Succession ActCap. 160
  • Judicature ActSection 5(1) and 5(2), Cap 8
  • Civil Procedure ActSection 63(c); Section 1B
  • Civil Procedure RulesOrder 40 Rule 31; Order 21 Rule 1
  • Employment and Labour Relations Court ActSection 3; Section 13
  • Employment and Labour Relations Court (Procedure) RulesRule 32
  • Constitution of KenyaArticles 24, 25(c), 40, 48, 50(1), 159(2)(d)

Cases cited (8)

  • Gatharia K. Mutitika & 2 Others v Baharini Farm Ltd.
    [1985] KLR 227
  • Kyoga Hauliers Limited v Long Distance Truck Drivers & Allied Workers Union
    [2015] eKLR
  • North Tetu Farmers Co. Ltd v Joseph Nderitu Wanjohi
    (2016) eKLR
  • Christine Wangari Gachege v Elizabeth Wanjiru Evans & 11 Others
    (2014) eKLR
  • Econet Wireless Kenya Ltd v Minister For Information & Communication Of Kenya & Another
    [2005] 1 KLR 828
  • Refrigerator & Kitchen Utensils Ltd. v Gulabchand Popatlal Shah & Others Civil Application No. Nairobi 39 of 1990 in Wildlife Lodges Ltd v County Council Of Narok And Another
    (2005) 2 EA 344 (HCK)
  • Mohamed Aktarkana v Attorney General
    Nairobi HCCP No. 544 of 2010
  • Central Bank of Kenya & Another v Ratiljb Automobiles Limited & Others
    Civil Application No. Nai. 247 of 2006
Jurisdiction invoked
Employment and Labour Relations Court Act, Sections 3 and 13

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, "Aphonse Mwangemi Munga & 10 others (Suing on behalf and on behalf of 367 employees of African Safari Club Limited) v African Safari Club Limited & 3 others [2021] KEELRC 2238 (KLR)", Case Analysis (2021). Cause No. 133 (N) of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2238/eng@2021-01-29

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