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ELRCDismissedNot stated in the judgment extract· [2023] KEELRC 1006 (KLR)

Awuor & 37 others v Migori County Government & another (Cause 323 of 2017) [2023] KEELRC 1006 (KLR)

Employment and Labour Relations Court
3 May 2023
RSRadido Stephen
1,384 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Claimants, 38 workers formerly on casual terms with Migori County Government, obtained a judgment on 9 July 2019 directing the Respondents to verify their credentials and offer them permanent employment within 30 days, failing which they would be deemed permanent employees entitled to minimum benefits under the Employment Act, 2007. Alleging non-compliance, they moved the Court by a Motion dated 10 January 2023 seeking committal of Governor George Ochillo Ayacko and County Secretary Oscar Olima (or his successor) to civil jail for six months, or alternatively a fine, for contempt of the decree. The Respondents filed Grounds of Opposition and a replying affidavit sworn by the County Secretary. The Court restated the elements of contempt: proof of the order, service or knowledge of it, and willful disobedience. It found the Claimants had not served the 30 days' show-cause notice directed by the Ruling of 11 February 2021, serving instead a 14-day demand notice dated 30 September 2022. Relying on its earlier Ruling, the Court held that the organ responsible for implementation was the Migori County Public Service Board, whose Accounting Officer (the Secretary/CEO) had not been joined, and that the Governor and County Secretary had no direct implementation role. The Court also found no proof that fixed-term contracts were issued to the Claimants (the sole exhibited contract belonged to a non-party), no termination letter was produced, and the exhibited October 2022 letters spoke to conversion of casual contracts and recruitment freezes. Any termination dispute, the Court held, was a fresh cause of action. The Motion was dismissed with costs on 3 May 2023.

Key legal issues

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01

Whether the elements of contempt were established against the Governor and County Secretary

Holding

The Court declined to hold them in contempt; the elements were not proved.

Reasoning

The Court restated the prerequisites for contempt: proof of an order, service or knowledge, and willful disobedience. The Claimants served only a 14-day demand notice instead of the 30 days' notice directed by the Ruling of 11 February 2021, and produced no evidence of willful disobedience by the two officers.

p. 4
02

Whether the correct contemnor was before the Court

Holding

No - the organ responsible for implementing the decree is the County Public Service Board, whose Accounting Officer (Secretary/CEO) was not joined.

Reasoning

Relying on its earlier Ruling of 11 February 2021, the Court held that implementation of the judgment was incumbent on the Board as an organ, and that the Governor and County Secretary had no direct implementation role. The Accounting Officer of the Board, the proper target of contempt proceedings, was not made a party.

p. 4
03

Whether subsequent termination of the Claimants' contracts amounted to contempt

Holding

The judgment did not bar lawful termination; any termination dispute is a fresh cause of action.

Reasoning

The Court found no evidence of 3-month fixed contracts being issued (the sole exhibited contract belonged to a non-party), no letter of termination was produced, and the exhibited letters of October 2022 spoke to conversion of casual contracts and recruitment freezes, not termination. Any termination dispute should be pursued as a fresh suit.

p. 5

Legal principles established

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  • Elements of contempt: existence of a court order, service or knowledge of it, and willful disobedience or failure to comply
  • Committal can only lie against the person or organ directly responsible for implementing the order
  • Termination of contracts in breach of a decree is a fresh cause of action, not enforceable through contempt proceedings

Court orders

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  1. 1.The Court declines to find the Governor and the County Secretary, Migori to be in contempt of the judgment or orders of the Court
  2. 2.The Motion is dismissed with costs

Authorities

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Legislation

  • Employment ActMinimum benefits under the Employment Act, 2007
Jurisdiction invoked
Original contempt jurisdiction of the Employment and Labour Relations Court over disobedience of its own decree issued on 9 July 2019

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, "Awuor & 37 others v Migori County Government & another (Cause 323 of 2017) [2023] KEELRC 1006 (KLR)", Case Analysis (2023). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1006/eng@2023-05-03

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