Okechi & 4 others v Seeds of Peace Africa International [SOPA] & another (Cause E592 of 2021) [2023] KEELRC 2248 (KLR)
The bottom line
#Kenya's Employment Court found two organisations in contempt of a court order, but refused to pay withheld salaries through contempt proceedings.
What this practically means
#Executive summary
#Key legal issues
#Whether withheld salaries and compensation for unfair termination can be granted in a contempt application
No; those are post-judgment reliefs requiring evidence, admission or consent
The court held the prayers sounded like garnishee orders grantable only after judgment by a decree holder. Compensation for the remainder of a contract and loss of employment requires taking of evidence unless admitted or compromised. The stay-of-suspension order did not quantify arrear salary, which becomes a contractual debt enforceable in contract, not contempt.
Whether the respondents were in contempt of the order of July 27, 2021
Yes; service and non-compliance were undisputed, the respondents failed to discharge the evidential burden on willfulness and bad faith, and an adverse inference was drawn against the 2nd respondent for not swearing an affidavit
The court applied Fakie No v Systems: once order, service and non-compliance are proved, the respondent bears the evidential burden on willfulness and mal fides. The 2nd respondent, the alleged main contemnor, gave no explanation on oath; the auditor's affidavit was absent; the alleged theft was not reported to police nor treated as gross misconduct; explanations were vague and unconvincing.
Whether compliance with a court order may be made conditional by the party bound
No; a party obliged to obey an order cannot dictate the terms, conditions or timing of compliance
The respondents argued compliance required constructive negotiation of terms of settlement under the Employment Act. The court rejected this, holding they should have applied to court to vary the order with conditions if genuinely needed; self-imposed conditions cannot excuse non-compliance.
Legal principles established
#- The applicant for contempt must prove the order, service or notice, non-compliance, willfulness and bad faith; once order, service and non-compliance are proved, the respondent bears the evidential burden on willfulness and bad faith
- Salary arrears under a suspended suspension are a contractual debt not enforceable by contempt proceedings
- Parties bound by a court order must comply without attaching their own conditions
Court orders
#- 1.Prayers 4 and 6 of the application declined as unavailability of such orders at this interlocutory stage
- 2.Respondents found to have been in contempt of the court order of July 27, 2021
- 3.Respondents ordered to appear before the court on the 4th day of October, 2023 for sentencing; for the 1st respondent its board of directors must appear
- 4.Costs: no express costs order made
- Jurisdiction invoked
- Contempt jurisdiction of the Employment and Labour Relations Court over disobedience of its orders of July 27, 2021
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okechi & 4 others v Seeds of Peace Africa International [SOPA] & another (Cause E592 of 2021) [2023] KEELRC 2248 (KLR)", Case Analysis (2023). Cause No E592 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2248/eng@2023-09-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.