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ELRCDismissedNot stated in judgment (Notice of Motion dated 21st November, 2022)· [2023] KEELRC 817 (KLR)

Maina v Kenyatta University (Petition 133 of 2018) [2023] KEELRC 817 (KLR)

Employment and Labour Relations Court
23 March 2023
1,712 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court dismissed a contempt application against Kenyatta University, confirming contempt requires proof stronger than ordinary civil cases and that the university had already complied.

What this practically means

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Executive summary

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The applicant, acting in person, brought a Notice of Motion dated 21st November, 2022 seeking contempt proceedings against individuals responsible for issuing employment contracts in Kenyatta University's administration for allegedly disobeying the decree of Wasilwa J. dated 7th May, 2020, which declared her employment permanent and pensionable and required the respondent to issue her a contract on her grade. She also sought a warrant of attachment and sale through Chador Auctioneers to recover Kshs 55,098 in taxed costs, plus costs of the application. The respondent opposed, arguing the application was overtaken by events since it had issued a letter of offer on permanent and pensionable terms, that the contempt prayer was vague, that execution for costs could not issue against a government institution, that it had paid the costs on a without prejudice basis while a reference against taxation remained pending, and that the Court was functus officio. The Court, declining to dwell on technicalities given the applicant's unrepresented status, restated that contempt carries an intermediate burden of proof higher than balance of probabilities but not beyond reasonable doubt. It found the respondent had complied with the decree by offering the applicant a job at an appropriate level on permanent and pensionable basis and had paid the costs, reserving the pending reference. The applicant failed to discharge the onus on her; most of her complaints were res judicata. Guided by the Court of Appeal decision in Akbar Abdullah Kassam Esmail v Equip Agencies Limited, the Court dismissed the application with no order as to costs, warning that costs would follow should she persist in unnecessary applications.

Key legal issues

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01

Standard and burden of proof in contempt applications

Holding

The applicant bears an intermediate burden of proof, higher than balance of probabilities but below beyond reasonable doubt, which she failed to discharge

Reasoning

Contempt applications are criminal in nature and attract penal consequences such as fines and incarceration, so the applicant is strictly bound to discharge the intermediate standard. The Court found the respondent had complied with the decree by offering the applicant permanent and pensionable employment at an appropriate level and paying costs, so the applicant failed to prove wilful disobedience.

p. 4
02

Whether the respondent complied with the decree of 7th May, 2020

Holding

The Court found the respondent had complied by issuing the applicant a job at an appropriate level on permanent and pensionable basis

Reasoning

The respondent issued a letter of offer on 9th January, 2023 on permanent and pensionable terms, albeit the applicant disputed the grade and details. Weighing the parties' depositions and submissions, the Court was satisfied of compliance and found the applicant's grievances mostly res judicata given the substantive judgment and the Court of Appeal outcome in her favour.

p. 4
03

Res judicata of the applicant's complaints

Holding

Most matters raised by the applicant are res judicata, the substantive suit having been determined in her favour and the appeal largely determined in her favour

Reasoning

The Court held that the substantive dispute over the employment contract had been fully determined in the petitioner's favour by Wasilwa J. and largely upheld by the Court of Appeal. The applicant ought to take up her new responsibilities and end the perennial disputes with her employer rather than file successive applications.

p. 4

Legal principles established

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  • The burden of proof in a contempt application is an intermediate standard, higher than the balance of probabilities but not beyond reasonable doubt

Court orders

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  1. 1.The Notice of Motion dated 21st November, 2022 is dismissed
  2. 2.No order as to costs
  3. 3.Warning that costs will be ordered against the applicant should she persist in further unnecessary applications against the respondent

Authorities

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Cases cited (2)

  • Kenyatta University v Esther Njeri Maina
    Civil Appeal No. 261 of 2020
  • Akbar Abdullah Kassam Esmail v Equip Agencies Limited & 4 Others
    [2014] eKLR
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court; enforcement of decree of Wasilwa J. dated 7th May, 2020 following dismissal of appeal in Court of Appeal Civil Appeal No. 261 of 2020

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, "Maina v Kenyatta University (Petition 133 of 2018) [2023] KEELRC 817 (KLR)", Case Analysis (2023). Not stated in judgment (Notice of Motion dated 21st November, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/817/eng@2023-03-23

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