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ELRCDismissedPetition (Notice of Motion applications dated May 18, 2021 and July 16, 2021)· [2023] KEELRC 1641 (KLR)

Kenya Union of Clinical Officers (KUCO) v Baringo County & 46 others; Council of Governors (Interested Party) (Employment and Labour Relations Petition 211 of 2019) [2023] KEELRC 1641 (KLR)

Employment and Labour Relations Court
6 July 2023
MOMaureen Onyango
1,629 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Migori County lost its bid to escape orders it never knew about, but the union failed to jail anyone for contempt because the orders were never served.

What this practically means

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Executive summary

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Two applications arose from a petition by the Kenya County Government Workers Union concerning unpaid salaries of county government workers who went on strike in November and December 2019. On December 10, 2020, Rika J ordered, inter alia, that Migori County Government pay its workers their November and December 2019 salaries like the other counties. The 27th Respondent, Migori County Government, applied to set aside Order 3 of those directions, claiming it was never served with the Petition or the underlying application and was condemned unheard contrary to Article 50. The Petitioner opposed, asserting the orders were matters of public knowledge and that counsel for the Council of Governors was present when the orders were made. The Petitioner separately sought declarations of civil contempt against the County Government and named officers, committal to civil jail for six months, denial of audience, and personal indemnity costs. The court found the 27th Respondent was indeed not represented when the orders were made, but held that setting aside the orders would serve no purpose since the suit affected all county governments and the 27th Respondent would still have to comply. On contempt, the Petitioner conceded there was no service of the orders, and the court held a person cannot be punished for disobeying an unserved order, finding deliberate disobedience unproven. Both applications were dismissed with no orders as to costs, and the 27th Respondent was directed to comply with the December 10, 2020 orders within 90 days if not already done.

Key legal issues

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01

Setting aside ex parte orders issued against a party not served or represented

Holding

Although the 27th Respondent was not represented when the orders were made, setting them aside would serve no purpose because it would still be bound to comply, the orders having been made against all county governments on the same facts

Reasoning

The court found the 27th Respondent was not in court and may not have known of the proceedings. However, the cause of action affected the Petitioner and all county governments alike, and all other counties had complied. The 27th Respondent could not expect different treatment, so the set-aside application was futile and was dismissed.

p. 4
02

Elements of civil contempt - service and deliberate disobedience

Holding

Contempt cannot be established absent service of the order or proof it came to the contemnor's attention by acceptable means, and no deliberate disobedience was proved

Reasoning

The Petitioner conceded there was no service of the orders on the alleged contemnors, and it was common ground the 27th Respondent was not represented when the orders were made. The court held service, or acceptable proof of knowledge, is a prerequisite to punishment, and found deliberate disobedience unproven.

p. 4

Legal principles established

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  • A person cannot be punished for contempt of an order that was not served on them or proved to have been brought to their attention by other acceptable means.

Court orders

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  1. 1.The applications dated May 18, 2021 and July 16, 2021 are dismissed with no orders as to costs
  2. 2.The 27th Respondent is directed to comply with the court orders of December 10, 2020, if it has not already done so, within 90 days from the date of the judgment

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50
Jurisdiction invoked
Employment and Labour Relations Court, acting in its original petition jurisdiction (Article 50 of the Constitution invoked in respect of the right to be heard)

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, "Kenya Union of Clinical Officers (KUCO) v Baringo County & 46 others; Council of Governors (Interested Party) (Employment and Labour Relations Petition 211 of 2019) [2023] KEELRC 1641 (KLR)", Case Analysis (2023). Petition (Notice of Motion applications dated May 18, 2021 and July 16, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1641/eng@2023-07-06

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