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ELRCStruck OutApplication dated October 17, 2022 in an ELRC petition (number not stated in judgment)· [2023] KEELRC 637 (KLR)

Mberia & 3 others v County Secretary, County Government of Meru & 2 others; Kwiriga & 4 others (Interested Parties) (Petition 1 of 2022) [2023] KEELRC 637 (KLR)

Employment and Labour Relations Court
3 March 2023
OMOnesmus N Makau
2,270 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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A Kenyan court struck out a contempt application because it relied on the Contempt of Court Act, 2016, which was declared unconstitutional.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nyeri (Makau J) on a Notice of Motion dated October 17, 2022 in which the petitioners (claimants), Chief Administrative Officers who had been sent on compulsory leave by letters of August and September 2022, sought to join five persons acting in their positions as interested parties and to have the respondents and those persons cited for contempt of, and committed to civil jail for breach of, a conservatory order granted by Marete J on October 7, 2022 restraining implementation of the impugned decisions. The respondents opposed, contending that the claimants remained employees drawing full benefits and had declined invitations to resume work; that the application was fatally defective for being anchored on the Contempt of Court Act, 2016, declared unconstitutional in Kenya Human Rights Commission v Attorney General; that the contempt issue was sub judice in Meru HC Petition No. E024 of 2022 (Hon. Kawira Mwangaza v County Assembly of Meru); and that there was no proof of disobedience, the claimants' screenshots lacking certification under the Evidence Act. The court framed four issues but resolved only the first. Holding that the Contempt of Court Act was non-existent and that, per the Supreme Court in Michael Mungai v Housing Finance Co. (K) Ltd, no right can be derived from a repealed law, the court found the defect substantive and jurisdictional, not curable under Article 159(2)(d) or Order 51 Rule 10(1). The court never reached joinder, sub judice or the merits of the contempt allegation. The application was struck out with costs on March 3, 2023.

Key legal issues

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01

Whether the application is fatally incompetent for being anchored on the Contempt of Court Act, 2016, which was declared unconstitutional

Holding

The application was incompetent; the substantive provisions invoked were from a non-existent statute, so the court's jurisdiction was not properly invoked and the application was struck out

Reasoning

Both sides agreed the Contempt of Court Act had been declared unconstitutional and that the proper law was Section 5 of the Judicature Act. The court held that Order 51 Rule 10(1) could not cure the defect because the omission was substantive, going to jurisdiction, and relied on the Supreme Court's decision in Michael Mungai v Housing Finance Co. (K) Ltd that no right can be derived from a repealed law.

p. 5
02

Whether the sub judice, evidentiary and contempt merits fell for determination

Holding

Not determined, as the application was struck out on the threshold issue of competence

Reasoning

The respondents had argued the matter was sub judice in Meru HC Petition No. E024 of 2022 and that the applicants had not discharged the burden of proving disobedience, including via uncertified electronic evidence. Because the court found the jurisdiction of the court was never properly invoked, it did not reach the sub judice or evidentiary questions.

p. 5

Legal principles established

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  • No court can be moved and no right can be derived from a repealed or non-existent law; invoking the wrong statute goes to jurisdiction and is not a curable technicality

Court orders

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  1. 1.The application dated October 17, 2022 is struck out
  2. 2.Costs of the application to the respondents

Authorities

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Legislation

  • Contempt of Court ActSections 3, 4(1)(a), 5, 28 and 34
  • Judicature ActSection 5
  • Civil Procedure ActSections 1A and 3A
  • Civil Procedure RulesOrder 51 Rule 1; Order 51 Rule 10(1)
  • Evidence ActSections 106B(2) and 106(4)
  • Constitution of KenyaArticles 159 and 159(2)(d)

Cases cited (8)

  • Shimmers Plaza Ltd v National Bank of Kenya Ltd
    (2015) eKLR
  • Kenya Human Rights Commission v Attorney General & Another
    (2018) eKLR
  • Daniel Kimani Njihia v Francis Mwangi Kimani & another
    (2015) eKLR
  • Michael Mungai v Housing Finance Co. (K) Ltd & 5 others
    (2017) eKLR
  • Hermanus Philipus Steya v Giovanni Gunechi-Ruscone
    Supreme Court Application No 4 of 2012
  • Beatrice Muthoni Gathima & 2 Others v Arthur Wambugu Muiga & 4 others
    (2022) eKLR
  • Aggrey Wafula v Public Service Commission & 5 others
    (2022) eKLR
  • Kenya National Union of Nurses v County Government of Meru & Another
    (2022) eKLR
Jurisdiction invoked
Contempt jurisdiction invoked under Sections 3, 4(1)(a), 5, 28 and 34 of the Contempt of Court Act No. 46 of 2016, Sections 1A and 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules

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, "Mberia & 3 others v County Secretary, County Government of Meru & 2 others; Kwiriga & 4 others (Interested Parties) (Petition 1 of 2022) [2023] KEELRC 637 (KLR)", Case Analysis (2023). Application dated October 17, 2022 in an ELRC petition (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/637/eng@2023-03-03

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