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ELRCDismissedNotice of motion application dated June 2, 2022 in the petition/claim· [2022] KEELRC 1577 (KLR)

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)

Employment and Labour Relations Court
29 July 2022
2,252 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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The Employment Court refused to jail county officials for removing workers from payroll, finding contract expiry—not disobedience—explained it.

What this practically means

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Executive summary

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The applicant, through a notice of motion dated June 2, 2022, sought to cite the respondents for contempt of court orders of April 28, 2022 (and a March 9, 2022 status quo order) for removing 46 claimants from the payroll, and sought warrants of arrest and committal to jail for up to six months. The application was supported by the affidavit of Hon Tom Odege, the secretary general, who averred the respondents defied the status quo order by striking the claimants off the payroll for the month ending April 2022. The respondents, in a replying affidavit of Joseph Wakoli Wambati, explained that the claimants' fixed-term contracts were due to expire in April 2022; the system automatically ejected them from the payroll after they earned up to April, and without express orders they could not renew or vary the contracts. The court canvassed the application orally on July 18, 2022. On the law, the court noted that the Contempt of Court Act, 2016 had been declared invalid in Kenya Human Rights Commission v Attorney General, and held that contempt procedure is governed by section 5 of the Judicature Act, importing English law at the time of the alleged contempt, following Alfred Mutua v Boniface Mwangi and Christine Wangari Gachege. On the standard of proof, it applied the Supreme Court's decision in Republic v Ahmad Abolfathi Mohammed endorsing Mutitika v Baharini Farm: proof higher than the balance of probabilities but not beyond reasonable doubt, committal being a last resort. The court found no wilful disobedience: the removal from payroll was a natural consequence of expiry of the contracts. The motion was dismissed with no order as to costs. The court further stayed the matter and referred the dispute to the Ministry of Labour and Social Protection for conciliation under the Labour Relations Act, with a report due within 60 days and mention on September 29, 2022.

Key legal issues

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01

Applicable law of contempt following invalidation of the Contempt of Court Act, 2016

Holding

Section 5 of the Judicature Act (Cap 8) governs, importing English contempt law as at the time of the alleged contempt

Reasoning

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.

p. 3
02

Standard of proof for contempt where committal to jail is sought

Holding

Higher than balance of probabilities, almost but not exactly beyond reasonable doubt, given the quasi-criminal nature and the liberty at stake

Reasoning

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.

p. 4
03

Whether removal of claimants from the payroll breached the status quo order

Holding

No wilful disobedience; removal was a natural consequence of expiry of fixed-term contracts

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The notice of motion application dated June 2, 2022 is dismissed
  2. 2.No order as to costs
  3. 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. 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. 5.Mention on September 29, 2022 to receive the report of the conciliator and for further directions

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 rule 3, Order 50 rule 1
  • Civil Procedure Act (Cap 21)Sections 1A, 1B, 63(A), (C) and (E)
  • Judicature Act (Cap 8)Section 5
  • Constitution of KenyaArticles 10 and 118(b)
  • Contempt of Court ActEntire Act (No 46 of 2016)
  • Labour Relations Actconciliation provisions

Cases cited (10)

  • Republic v Ahmad Abolfathi Mohammed & Another
    (2018)
  • Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya & Another
    [2005] 1 KLR 828
  • Gulabchand Popatlal Shah & Another
    Civil Application No 39 of 1990 (unreported)
  • Hadkinson v Hadkinson
    (1952) 2 All ER 567
  • Att-Gen v Times Newspapers Ltd
    [1974] AC 273
  • B v Attorney General
    [2004] 1 KLR 431
  • Kenya Human Rights Commission v Attorney General & Another
    [2018] eKLR
  • Alfred Mutua v Boniface Mwangi
    [2022] eKLR
  • Christine Wangari Gachege v Elizabeth Wanjiru Evans & 11 Others
    [2014] eKLR
  • Mutitika v Baharini Farm Limited
    [1985] KLR 229, 234
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

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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, "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.