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ELRCPartially AllowedJudicial Review Application (Exparte Applicants' Notice of Motion dated 7th February, 2022)· [2022] KEELRC 135 (KLR)

Republic v Inspector General of Police & 2 others Ex parte Ayub Gikonyo Mathenge & 2 others [2022] KEELRC 135 (KLR)

Employment and Labour Relations Court
28 April 2022
1,949 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court found police authorities in willful defiance of a pay status quo order, cutting them off from court hearings until they comply.

What this practically means

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Executive summary

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The Exparte applicants, graduate police officers engaged in 2013 in Job Group J, moved the Court by Notice of Motion dated 7th February, 2022 seeking cross-examination of the Inspector General of Police and the Chairperson of the National Police Service Commission on compliance, citation for contempt, warrants of arrest, committal, sequestration, and an order restraining retaliation, alleging breach of interim orders of 15th December, 2021 maintaining the status quo on their remuneration after a reduction letter from Job Group J to F. The respondents, through counsel, submitted the order was incapable of implementation and that they would not comply, while seeking a full hearing on the merits. The Court held that an aggrieved party must appeal or seek setting aside, and absent a stay, orders must be obeyed. Relying on Giella –vs- Cassman Brown Ltd., it confirmed the interim orders were properly granted and distinguished the Court of Appeal decision in Attorney General v Evans Muriuki Muthuuri. Adopting the principle that a court order is not a suggestion and defiance is not an option, the Court found the 2nd respondent in open, blatant and willful defiance for failing to withdraw the reduction letter. It declined to grant further audience to the respondents on the merits until compliance, directed that the suit proceed exparte on 14th June, 2022 in default, summoned Eliud N. Kinuthia to show cause why he should not be cited for contempt, and awarded costs to follow the event. The application was granted in part; immediate committal and property attachment were not ordered at this stage.

Key legal issues

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01

Whether the respondents were in contempt of the interim orders of 15th December, 2021

Holding

The 2nd respondent was found in open, blatant and willful defiance by failing to withdraw the letter reducing the applicants' grade and remuneration.

Reasoning

The Court had on 15th December, 2021 directed maintenance of the status quo on the applicants' remuneration, restoring Job Group J. The respondents, represented by counsel, submitted they would not obey the order, claiming it was incapable of implementation, without seeking stay on appeal or setting it aside. The Court held that absent a stay, the order bound them and their declared intention not to comply constituted willful defiance.

02

What sanction flows from the contempt

Holding

The Court barred the respondents from further audience on the merits until compliance and summoned the 2nd respondent's Chairperson to show cause why he should not be cited for contempt.

Reasoning

The Court declined to engage in a contest with the executive but insisted on deference to its orders, holding there was no useful purpose in granting audience to a party prepared to obey orders only when favourable. It therefore denied further audience pending compliance and fixed the suit to proceed exparte on the merits if the orders were not complied with.

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03

Whether the present case was distinguishable from the Court of Appeal decision in Attorney General v Evans Muriuki Muthuuri

Holding

The Court distinguished it because the applicants here had been employed and remunerated in Job Group J since 2013, unlike the police officers in that case seeking promotion from Job Group F to J.

Reasoning

The Court of Appeal had granted stay of remuneration orders to the Police Service in a case where officers sought upward regrading. Here the applicants were already graduate officers in Job Group J and had suffered a reduction. The factual basis for interim relief was therefore different and Giella –vs- Cassman Brown requirements were satisfied.

p. 3

Legal principles established

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  • A party aggrieved by a court order must appeal or seek to set it aside; until then it must be obeyed.
  • Court orders are peremptory and must be complied with; defiance is not an option.

Court orders

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  1. 1.The Court will not grant any further audience to the respondents on the merits of this case until they comply with the orders issued on 15th December, 2021
  2. 2.In the event of non-compliance, the suit shall proceed exparte on 14th June, 2022 on the merits
  3. 3.The Chairperson of the 2nd Respondent, Eliud N. Kinuthia, is summoned to show cause why he should not be cited for contempt and punished for disobeying the order of 15th December, 2021
  4. 4.Costs to follow the event

Authorities

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Legislation

  • Constitution of KenyaArticle 10
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure RulesOrder 21 rule 1
  • Civil Procedure ActSection 18

Cases cited (4)

  • Gielle –vs- Cassman Brown Ltd.
    [1978] EA
  • Attorney General and 2 Others –vs- Evans Muriuki Muthuuri and (4) Others
    Court of Appeal Civil Application No. 253 of 2019 (UR 232)/(2019)
  • Kudheiha Workers –vs- Director Riara Group of Schools
    (2021) eKLR
  • Christine Wangari Gachigi –vs- Elizabeth Wanjiru Evans and 11 Others
    [2014] eKLR
Jurisdiction invoked
Court's power to enforce and punish contempt of its own orders issued in pending judicial review proceedings

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, "Republic v Inspector General of Police & 2 others Ex parte Ayub Gikonyo Mathenge & 2 others [2022] KEELRC 135 (KLR)", Case Analysis (2022). Judicial Review Application (Exparte Applicants' Notice of Motion dated 7th February, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/135/eng@2022-04-28

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