Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedNot stated in judgment· [2023] KEELRC 1696 (KLR)

Njagi v Tharaka Nithi County Government (Cause 7 of 2020) [2023] KEELRC 1696 (KLR)

Employment and Labour Relations Court
14 July 2023
OMOnesmus N. Makau
1,533 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

A Kenyan court struck out a county government's late defence in contempt proceedings, ruling parties get one chance to respond—but the targeted officers can still defend themselves.

What this practically means

#

Executive summary

#
This ruling of the Employment and Labour Relations Court at Nyeri (Onesmus N. Makau, J) determined the petitioner's Notice of Motion dated 1st December 2022 in pending contempt of court proceedings. The contempt application dated 8th December 2021, brought to enforce a judgment of 8th December 2017, was met by a preliminary objection dated 21st March 2022, which was dismissed on 16th September 2022. The respondent then filed a Replying Affidavit sworn on 24th October 2022 by William Micheni M'Birichi without leave. The petitioner moved to strike out that affidavit and to have the contempt application allowed as prayed, arguing that Order 51 Rule 14(1) of the Civil Procedure Rules confines a respondent to one election of response, and that by choosing a preliminary objection the respondent admitted the facts and was estopped from filing a fresh response. The respondent countered that its dismissal objection went to form only, and that striking out the affidavit would violate its rights of access to justice and fair hearing under Articles 48 and 50 of the Constitution. The court held that by filing a preliminary objection alone the respondent exhausted its right to be heard and could not take a second bite at the cherry, which would amount to playing lottery with justice. However, the court preserved the targeted officers' liberty to respond, since contempt must be directed at individuals who cannot be condemned unheard. The Replying Affidavit was struck out; the contempt application was not allowed but set down for hearing, with costs abiding its outcome.

Key legal issues

#
01

Whether Order 51 Rule 14(1) CPR permits a respondent to file a replying affidavit after its preliminary objection is dismissed

Holding

No - the respondent's election to respond only by preliminary objection exhausted its right to respond; the replying affidavit was filed without leave and is struck out

Reasoning

Order 51 Rule 14(1) provides that a respondent may file only one or a combination of the listed responses. The respondent chose a preliminary objection alone, which was dismissed on 16th September 2022. Filing a fresh response afterwards would be a second bite at the cherry and would amount to playing lottery with justice, the mischief the rule was framed to prevent.

p. 3
02

Whether the targeted officers retain a right to be heard on the contempt motion

Holding

Yes - the striking out does not bar the officers targeted for punishment from filing their own responses

Reasoning

Contempt proceedings must be directed at an individual, not the corporate respondent. Denying the targeted officers an opportunity to respond would condemn a person unheard. The court therefore preserved their liberty to respond as provided by law.

p. 4

Legal principles established

#
  • A respondent who elects to oppose a motion solely by preliminary objection exhausts its right to be heard on that application and cannot thereafter file a fresh replying affidavit without leave
  • Contempt proceedings must be directed at an individual, and the officer targeted for punishment retains a right to be heard notwithstanding striking out of the respondent's affidavit

Court orders

#
  1. 1.The Replying Affidavit sworn on 24th October 2022 is struck out
  2. 2.The application dated 8th December 2021 to be fixed for hearing on a date to be agreed between the parties or fixed by the court
  3. 3.The officers targeted by the contempt proceedings have liberty to respond to the motion as provided by law
  4. 4.Costs shall abide the outcome of the notice of motion dated 8th December 2021

Authorities

#

Legislation

  • Civil Procedure RulesOrder 51 Rule 14(1) and (3)
  • ELRC Procedure RulesRule 32(2); Rule 28(3)
  • Constitution of Kenya, 2010Articles 48 and 50

Cases cited (3)

  • Mukisa Biscuits Manufacturing Co.Ltd v West End Distributors Ltd
    (1969) EA 696
  • John Mundia Njoroge & 9 Others v Cecilia Muthoni Njoroge & another
    (2016) eKLR
  • Serah Njeri Mwobi v John Kimani Njoroge
    (2013) eKLR
Jurisdiction invoked
Rule 32(2) of the ELRC Procedure Rules 2016 read with the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Njagi v Tharaka Nithi County Government (Cause 7 of 2020) [2023] KEELRC 1696 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1696/eng@2023-07-14

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