Union of Kenya Civil Servants (( Suing on Behalf of the 1st - 46th Claimants as per the Attached List of Claimants)) v County Government of Bungoma & another (Petition E002 of 2022) [2022] KEELRC 1577 (KLR)
The bottom line
#The Employment Court refused to jail county officials for removing workers from payroll, finding contract expiry—not disobedience—explained it.
What this practically means
#Executive summary
#Key legal issues
#Applicable law of contempt following invalidation of the Contempt of Court Act, 2016
Section 5 of the Judicature Act (Cap 8) governs, importing English contempt law as at the time of the alleged contempt
The court noted that the Contempt of Court Act No 46 of 2016 was declared invalid in Kenya Human Rights Commission v Attorney General for lack of public participation and encroachment on judicial independence. It therefore held that the law on contempt procedure was, and remains, section 5 of the Judicature Act, and adopted Odunga J's decision in Alfred Mutua v Boniface Mwangi upholding Christine Wangari Gachege on this point.
Standard of proof for contempt where committal to jail is sought
Higher than balance of probabilities, almost but not exactly beyond reasonable doubt, given the quasi-criminal nature and the liberty at stake
Relying on the Supreme Court's decision in Republic v Ahmad Abolfathi Mohammed, which endorsed Mutitika v Baharini Farm, the court held that because committal affects the contemnor's liberty, the power must be exercised with utmost care and only as a last resort, requiring proof that the conduct was deliberate and wilful.
Whether removal of claimants from the payroll breached the status quo order
No wilful disobedience; removal was a natural consequence of expiry of fixed-term contracts
The status quo order of March 9, 2022 maintained things as they were. The 46 claimants' contracts were expiring at the end of April 2022. The respondent's system automatically ejected them from the payroll after they earned up to April. The applicant should have sought an order extending the contracts pending judgment, which it did not do.
Legal principles established
#- The standard of proof in contempt proceedings is higher than the balance of probabilities but not beyond reasonable doubt, and committal must be a last resort requiring proof of deliberate, wilful flouting of the order
- Every person against whom a court order is made is under a plain and unqualified obligation to obey it unless and until it is discharged
- Following the invalidation of the Contempt of Court Act, 2016, the procedural law for contempt proceedings in Kenya is section 5 of the Judicature Act, importing English law applicable at the time the contempt was committed
Court orders
#- 1.The notice of motion application dated June 2, 2022 is dismissed
- 2.No order as to costs
- 3.The matter is stayed and the dispute referred to the Ministry of Labour and Social Protection for appointment of a conciliator under the Labour Relations Act
- 4.The conciliator to file a report in court within 60 days of the order, to be extracted and served at the Kakamega Ministry of Labour Office by the claimant
- 5.Mention on September 29, 2022 to receive the report of the conciliator and for further directions
- Jurisdiction invoked
- Order 40 rules 3 and Order 50 rule 1 of the Civil Procedure Rules 2010; Sections 1A, 1B and 63(A), (C) and (E) of the Civil Procedure Act (Cap 21); section 5 of the Judicature Act (Cap 8)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Union of Kenya Civil Servants (( Suing on Behalf of the 1st - 46th Claimants as per the Attached List of Claimants)) v County Government of Bungoma & another (Petition E002 of 2022) [2022] KEELRC 1577 (KLR)", Case Analysis (2022). Notice of motion application dated June 2, 2022 in the petition/claim. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1577/eng@2022-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.