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ELRCPartially AllowedNotice of Motion dated 11th April 2023 (in a petition before the ELRC Nyeri)· [2023] KEELRC 2310 (KLR)

Mberia & 3 others v County Secretary, County Government of Meru & 2 others; Kwiriga & 4 others (Interested Parties) (Petition 1 of 2022) [2023] KEELRC 2310 (KLR)

Employment and Labour Relations Court
29 September 2023
4,070 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan court found Meru County officials in contempt for ignoring a reinstatement order and withholding salaries, warning jail time may follow.

What this practically means

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Executive summary

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The applicants, four petitioners sent on compulsory leave by letters of August and September 2022, obtained conservatory orders from Marete J on 7th October 2022 restraining implementation of those letters and of appointments of persons to act as Chief Administrative Officers in their places. By a Notice of Motion dated 11th April 2023 they sought to have the respondents cited and committed to civil jail for six months for contempt, contending that they were locked out of their offices, that armed goons barred access, that replacements continued to act, and that their salaries for November 2022 to February 2023 were withheld. The respondents, through the Acting CEO of the 2nd respondent, denied disobedience, asserting the impugned letters were automatically revoked, the petitioners remained employees on full pay, and that the photographic and video evidence lacked authenticity for want of certificates under section 106B of the Evidence Act. The court applied the three-fold threshold for contempt: proof of service or knowledge, proof of violation, and proof of deliberateness. It found service admitted and the order unambiguous. Though the electronic evidence was inadmissible for want of certification, the respondents' unexplained withholding of four months' salaries corroborated the applicants' account and was inconsistent with compliance. Deliberateness was found, the County Secretary being the proper person to secure compliance. The court cited the respondents for contempt but, rather than sentencing immediately, summoned the First Respondent (or his successor) to appear virtually on 12th October 2023 to show cause why punishment should not follow; the respondents were denied audience until the contempt is purged, and the applicants were awarded costs.

Key legal issues

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01

Whether the respondents were served with or had knowledge of the orders of 7th October 2022

Holding

Service and knowledge were established; the respondents admitted service in their replying affidavit and submissions

Reasoning

Contempt requires proof of personal service or knowledge. The court found the orders were served and the respondents admitted this. The order itself was clear and unambiguous, commanding the respondents not to implement the compulsory leave letters and not to allow others to act as chief administrative officers in the applicants' places.

p. 5
02

Whether the respondents violated the orders

Holding

Violation was established by the unexplained withholding of the applicants' salaries for November 2022 to February 2023, corroborating the applicants' account that they were barred from resuming work

Reasoning

Although the applicants' photographs and video clips lacked certification under section 106B of the Evidence Act, the respondents never denied withholding salaries for four months and produced payment records only from March 2023. No justification was offered, and this conduct was inconsistent with full compliance with the conservatory orders reinstating the applicants.

p. 7
03

Whether the violation was deliberate

Holding

The court found the respondents deliberately failed to allow the applicants back to their offices and withheld their salaries for four months

Reasoning

The County Secretary wrote the impugned letters and was the proper person to ensure compliance. Given the absence of any justification for the salary stoppage, the conduct was wilful. The power to commit to jail must be exercised as a last resort and only where the contemnor's conduct is deliberate, a threshold the court found met here.

p. 7

Legal principles established

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  • The standard of proof in contempt proceedings is higher than the balance of probabilities, almost but not exactly beyond reasonable doubt
  • Knowledge of a court order supersedes proof of personal service
  • Every person against whom a court order is made has a plain and unqualified obligation to obey it until discharged

Court orders

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  1. 1.The respondents are cited for contempt of the court's order issued on 7th October 2022 for failing to allow the applicants back to their offices and for withholding their salary for November 2022 to February 2023
  2. 2.The First Respondent Mr. Rufus Miriti or his successor in title is summoned to attend virtual Court personally on 12th October 2023 at 9.00 AM to show cause why the respondents should not be punished for contempt of court
  3. 3.Until the contempt is purged the respondents will have no audience before the court
  4. 4.The applicants are awarded costs of the application

Authorities

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Legislation

  • Judicature ActSection 5
  • Evidence ActSection 106B (2) and (4)
  • English Civil Procedure (Amendment No.2) Rules 2012Rules 81.5 and 81.8
  • ELRC Procedure RulesRule 28(3)

Cases cited (12)

  • Moses P N Njoroge & others v Reverend Musa Njuguna & another
  • Mutitika v Bahari Farm Limited [1985] KLR 229
    [1985] KLR 229
  • Aggrey Wafula v Public Service Commission & 5 others [2022] eKLR
    [2022] eKLR
  • Stephen K Sang & another v Chebii Boiyo & another [2021] eKLR
    [2021] eKLR
  • Kenya National Union of Nurses v County Government of Meru & another [2022] eKLR
    [2022] eKLR
  • Shimmers Plaza Limited v National Bank of Kenya Limited [2015] eKLR
    [2015] eKLR
  • Basil Criticos v Attorney General & 4 others [2012] e-KLR
    [2012] e-KLR
  • Republic v Principal Secretary, Ministry of Defence Ex parte George Kariuki Waithaka [2019] eKLR
    [2019] eKLR
  • Republic v Ahmad Abolfathi Mohammed & another [2018] e KLR
    [2018] eKLR
  • Teachers Service Commission v Kenya Union of Teachers & another [2013] eKLR
    [2013] eKLR
  • Refrigerator & Kitchen Utensils Ltd v Gulabchand Shah & others Civil Application No. Nai 39 of 1990
    Civil Application No. Nai 39 of 1990
  • Fred Matiang'i the Cabinet Secretary, Ministry of Interior and Co-ordination of National Government v Miguna Miguna & 4 others [2018] eKLR
    [2018] eKLR
Jurisdiction invoked
Section 5 of the Judicature Act (contempt of court jurisdiction)

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, "Mberia & 3 others v County Secretary, County Government of Meru & 2 others; Kwiriga & 4 others (Interested Parties) (Petition 1 of 2022) [2023] KEELRC 2310 (KLR)", Case Analysis (2023). Notice of Motion dated 11th April 2023 (in a petition before the ELRC Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2310/eng@2023-09-29

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