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ELRCDismissedCause No E001 of 2022· [2024] KEELRC 223 (KLR)

Kenya National Union of Nurses v Garissa County Public Service Board (Cause E001 of 2022) [2024] KEELRC 223 (KLR)

Employment and Labour Relations Court
9 February 2024
OMONESMUS N MAKAU
1,229 words in judgment
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The bottom line

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A Kenyan court dismissed a union's contempt bid against county officers because mandatory procedural steps under the Government Proceedings Act were skipped first.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nyeri (Makau J) on a Notice of Motion dated 28th March 2023 in which the claimant sought contempt orders against three officers of the Garissa County Government — the County Secretary, the Director of Human Resource Management, and the Payroll Manager — for failing to comply with a judgment of Marete J delivered on 31st October 2022. The underlying judgment had ordered payment of withheld salaries to two nurses, promotion of Mary Kanario Mpekethu to Job Group N with salary arrears, an order against victimisation, and costs. The claimant contended the officers deliberately disobeyed the orders. The respondent argued the motion was incompetent because no certificate of order against the government had been obtained and served under section 21(1) of the Government Proceedings Act, and no writ of mandamus had been sought against the individual officers, relying on Republic v The Attorney General & another Exparte James Alfred Kosoro and Republic v Attorney General & another Exparte Stephen Wanyee Roki. The court framed two issues: competency and merit. Holding that contempt proceedings against government officers are premature without an order against the government issued and served under section 21 and without mandamus issued against the named officers, the court found the application fatally incompetent and dismissed it with costs. The respondent had earlier failed in an application to set aside the main judgment.

Key legal issues

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01

Whether the contempt motion was fatally incompetent for failure to comply with the procedure for executing decrees against the government

Holding

The application was fatally incompetent and premature as no order against the government under section 21 of the Government Proceedings Act had been issued and served, and no mandamus had been sought against the officers.

Reasoning

The court accepted the respondent's submission that execution against government requires a certificate of order against the government under section 21(1) of the Government Proceedings Act, and that an individual officer can only be pursued through an order of mandamus compelling them to honour the decree. Relying on Republic v The Attorney General & another Exparte James Alfred Kosoro, the court held that contempt against an officer arises only after mandamus issues and the officer declines to act. Lacking these steps, the motion was premature and stood dismissed with costs.

p. 3

Legal principles established

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  • Contempt proceedings against public officers for non-compliance with a judgment against government are premature unless a certificate of order against the government has been issued and served under section 21 of the Government Proceedings Act and a writ of mandamus has been sought and issued against the officers.

Court orders

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  1. 1.The Notice of Motion dated 28th March 2023 seeking contempt orders stands dismissed with costs.

Authorities

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Legislation

  • Civil Procedure Actsection 63(c)
  • Judicature Actsection 5
  • Government Proceedings Actsection 21(1), section 21
  • ELRC Procedure RulesRule 28(3)

Cases cited (2)

  • Republic v The Attorney General & another Exparte James Alfred Kosoro
    (2013) eKLR
  • Republic v Attorney General & another Exparte Stephen Wanyee Roki
    (2016) eKLR
Jurisdiction invoked
section 63(c) of the Civil Procedure Act Cap 21, section 5 of the Judicature Act

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 National Union of Nurses v Garissa County Public Service Board (Cause E001 of 2022) [2024] KEELRC 223 (KLR)", Case Analysis (2024). Cause No E001 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/223/eng@2024-02-09

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