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ELRCDismissedNotice of Motion dated 4th February, 2021 (arising from ELRC Cause; number not stated in judgment)· [2022] KEELRC 516 (KLR)

Kenya National Union of Nurses v County Government of Meru & another [2022] KEELRC 516 (KLR)

Employment and Labour Relations Court
9 March 2022
1,887 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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The Employment Court dismissed a union's contempt case against Meru County officials because the union could not prove its allegations with strong enough evidence.

What this practically means

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Executive summary

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The Claimant union moved the court by notice of motion dated 4th February, 2021 seeking committal to civil jail for six months of three county officers - Claire Kagwiria (Secretary/CEO, Meru County Public Service Board), Dr. James Kirimi (Chief Officer for Health) and Rufus Miriti (County Secretary) - for contempt of court orders of 28th January, 2021 which had restrained recruitment of nurses and touched on reinstatement and payment of striking nurses. The Claimant alleged that despite personal service, the Respondents turned away about 600 nurses, removed them from the payroll, conducted recruitment interviews, issued termination and transfer letters, withheld salaries and declined to deduct union dues, all in breach of the orders. The Respondents, in a replying affidavit and submissions, denied any breach, asserting compliance with the order by cancelling the interviews scheduled for 9th February, 2021, and contended that dismissals followed disciplinary processes after members breached a return-to-work formulae. They invoked Section 107 of the Evidence Act and Mutitika v Baharini Farm to argue that contempt, being quasi-criminal, must be proved to a standard higher than a balance of probabilities. The court agreed that this heightened standard applied, found the Claimant had not discharged the burden of proof - there was no evidential proof of the interviews, replacements or withheld salaries - and dismissed the application, with each party bearing their own costs. Judgment was delivered at Nyeri on 9th March, 2022 by D. K. Njagi Marete, J.

Key legal issues

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01

Burden and standard of proof in contempt proceedings

Holding

The applicant alleging contempt bears the burden of proving it to a standard higher than the balance of probabilities; the Claimant failed to discharge this burden

Reasoning

The court accepted the Respondents' submission invoking Section 107 of the Evidence Act and Mutitika v Baharini Farm, holding that contempt is quasi-criminal, engages the right to liberty, and requires proof almost but not exactly beyond reasonable doubt. On the evidence, the Claimant failed to demonstrate disobedience of the orders of 28th January, 2021.

p. 3
02

Whether the Respondents conducted recruitment interviews in breach of the order of 28th January, 2021

Holding

Not proved; the Respondents asserted the interviews were stopped by notice on their website and the Claimant adduced no evidence of any interview or replacement

Reasoning

The court found the Claimant produced no affidavit by an interviewee or documentary proof that the interviews took place or that any nurse was replaced after the order. Allegations of removal from payroll and withholding of salaries were likewise unsupported by documentary evidence.

p. 3

Legal principles established

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  • Contempt proceedings are quasi-criminal in nature and the standard of proof is higher than the balance of probabilities, almost but not exactly beyond reasonable doubt

Court orders

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  1. 1.The notice of motion dated 4th February, 2021 is disallowed (dismissed)
  2. 2.Each party to bear their own costs of the application
Jurisdiction invoked
Original contempt jurisdiction of the Employment and Labour Relations Court in an employment dispute (contempt application following court orders of 28th January, 2021)

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, "Kenya National Union of Nurses v County Government of Meru & another [2022] KEELRC 516 (KLR)", Case Analysis (2022). Notice of Motion dated 4th February, 2021 (arising from ELRC Cause; number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/516/eng@2022-03-09

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