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ELRCDismissedNot stated in judgment· [2023] KEELRC 1942 (KLR)

Dzila v Kwale County Assembly Service Board & 6 others (Cause 21 of 2020) [2023] KEELRC 1942 (KLR)

Employment and Labour Relations Court
27 July 2023
MMM. Mbarũ
3,109 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a clerk's contempt application because he skipped two disciplinary hearings, proving that ignoring an employer's invitations can cost you your case.

What this practically means

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Executive summary

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The claimant, formerly Clerk of the County Assembly of Kwale, applied by notice dated 17 May 2022 for an injunction restraining the respondents from continuing with a disciplinary process and for their committal to civil jail for contempt of orders issued on 1 April 2022. Those orders had temporarily stayed the disciplinary proceedings on condition that he remained on full pay without reporting to office, directed that typed proceedings issue by 8 April 2022, and provided that the stay would lapse on 29 April 2022, whereafter parties were to comply with the judgment of 25 February 2022. The respondents, through the affidavit of Speaker Seth Mwatela Kamanza, showed that after the stay lapsed, the Board resumed the disciplinary process, serving notice of a hearing on 4 May 2022 by email and WhatsApp, which the claimant acknowledged but did not attend. A select committee of the Assembly invited him for 16 May 2022; he again did not attend, and on 17 May 2022 the Assembly resolved to revoke his appointment, later gazetted. The court held that the injunctive relief was overtaken by events, and that contempt must be proved beyond reasonable doubt, including deliberate and mala fide disobedience. The respondents had afforded the claimant adequate opportunity to be heard; he squandered it and cannot hold his employer to ransom. The composition of the respondents had also changed after the August 2022 general election. The application dated 17 May 2022 was dismissed with costs to the respondents.

Key legal issues

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01

Whether the respondents were in contempt of the orders of 1 April 2022

Holding

No contempt established; the stay orders lapsed on 29 April 2022 and parties were to revert to complying with the judgment, which allowed the disciplinary process to resume

Reasoning

The orders of 1 April 2022 stayed the disciplinary process only until 29 April 2022, subject to the outcome of the appeal. The claimant did not move the Court of Appeal before that date. The respondents thereafter invited him to disciplinary hearings on 4 May and 16 May 2022 but he failed to attend without justification. Contempt requires deliberate, mala fide disobedience proved beyond reasonable doubt, which was not demonstrated. The cited persons had also left office.

p. 6
02

Whether an employee who squanders the chance to be heard can fault the employer

Holding

An employee who declines, without cause, to attend disciplinary proceedings cannot later allege unfairness or hold the employer to ransom

Reasoning

Relying on BIFU v Barclays Bank, Redlands Roses and Paul Wanyangah, the court held that where an employer takes genuine steps to accord the employee a hearing per section 41 of the Employment Act, an employee who fails or refuses to attend cannot fault the employer. The claimant sought leave, then cited unrelated High Court matters, and cannot blame the respondents for his non-attendance.

p. 6

Legal principles established

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  • The applicant in contempt proceedings bears the burden of proving contempt beyond reasonable doubt, including deliberate and mala fide disobedience
  • An employer cannot be faulted where an employee invited to a disciplinary hearing fails to attend without justifiable cause

Court orders

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  1. 1.Application dated 17 May 2022 dismissed
  2. 2.Costs of the application awarded to the respondents

Authorities

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Legislation

  • County Assembly Services Actsections 22, 23, 23(2)
  • Employment Actsections 41, 45, 44

Cases cited (4)

  • Samuel M. N. Mweru & others v National Land Commission & 2 others
    [2020] eKLR
  • BIFU v Barclays Bank of Kenya
    Cause 1660 of 2013
  • Redlands Roses Limited v Kenya Plantations and Agricultural Workers Union
    [2020] eKLR
  • Paul Wanyangah v Market Development Trust t/a Kenya Markets Trust
    [2017] eKLR
Jurisdiction invoked
Original employment jurisdiction; contempt of court application dated 17 May 2022 in ELRC cause

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, "Dzila v Kwale County Assembly Service Board & 6 others (Cause 21 of 2020) [2023] KEELRC 1942 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1942/eng@2023-07-27

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