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ELRCDismissedELRC Cause (Nyeri), Notice of Motion dated 8th December 2021· [2024] KEELRC 599 (KLR)

Njagi v Tharaka Nithi County Government (Cause 7 of 2020) [2024] KEELRC 599 (KLR)

Employment and Labour Relations Court
8 March 2024
OMONESMUS N MAKAU
3,777 words in judgment
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The bottom line

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The Employment and Labour Relations Court in Nyeri struck out a contempt application against Meru County's officials because the claimant skipped mandatory procedural steps for enforcing judgments against government.

What this practically means

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Executive summary

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This judgment by Onesmus N Makau J of the ELRC at Nyeri determines a Notice of Motion dated 8th December 2021 in which the claimant in a concluded employment dispute sought a finding that the County Secretary of the County Government of Meru was in contempt of the court's judgment of 8th December 2017, which had declared his revocation and demotion unlawful and ordered that he continue in service as Personal Assistant. The applicant deposed that he was repeatedly turned away from work, was not paid salary, and was ultimately terminated for gross misconduct on 25th June 2018 through disciplinary proceedings he contended defied the subsisting judgment. Two earlier contempt applications had been struck out on technical grounds. The County Secretary filed a replying affidavit; the court had earlier dismissed the Respondent's preliminary objection and struck out the Respondent's own replying affidavit, but granted the targeted officer leave to respond personally. The court framed four issues and held that the affidavit of 24th July 2023 was properly on record, having been filed with leave. On defectiveness, the court accepted that lack of an extracted decree is no longer fatal where knowledge of the order is shown, and that the particulars of contempt were stated. However, applying the James Alfred Kosoro decision and the Government Proceedings Act, the court held that enforcement against a government officer requires extraction of the decree, an order under section 21 of the Government Proceedings Act, and a writ of mandamus against the officer. The contempt proceedings were accordingly premature and fatally incompetent, and the motion was struck out with costs.

Key legal issues

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01

Whether the affidavit of 24th July 2023 was properly on record

Holding

Properly filed - it was sworn by the officer targeted by the contempt proceedings pursuant to leave expressly granted by the court

Reasoning

The court's earlier ruling had struck out the Respondent's replying affidavit but expressly preserved the liberty of the targeted officer to respond personally, since contempt must be directed at an individual and a person cannot be condemned unheard. The impugned affidavit, sworn by the County Secretary in his personal capacity, was filed on the basis of that leave and was substantially a rearrangement of the earlier affidavit. It was therefore properly on record.

02

Whether the contempt application was defective for failure to extract a decree

Holding

Lack of extraction alone no longer fatal where respondent's knowledge of the order is shown, but prematurity still renders proceedings incompetent

Reasoning

While the requirement of an extracted decree has shifted so that knowledge of the judgment suffices, and knowledge was established here, the applicant still had to follow the Government Proceedings Act route: obtain an order against the government under section 21 and a writ of mandamus against the officer. Failing that, contempt proceedings against the officer are premature and fatally incompetent.

p. 7
03

Whether the County Secretary was in contempt of the 8th December 2017 judgment

Holding

Not determined - the application was struck out once prematurity was found

Reasoning

Having held the contempt proceedings premature and fatally incompetent, the court declined to proceed to the merits of whether the County Secretary defied the judgment. The application had 'no life' and was struck out with costs.

p. 7

Legal principles established

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  • Contempt proceedings against a government officer cannot be entertained outside the Government Proceedings Act procedure and before a writ of mandamus is obtained against the concerned officer
  • Knowledge of a court order supersedes the need to prove personal service

Court orders

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  1. 1.The contempt application (Notice of Motion dated 8th December 2021) is struck out with costs.

Authorities

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Legislation

  • County Governments Actsections 59, 76(1) and (2), 77
  • Civil Procedure RulesOrders 13 Rule 2, 21 Rule 7, 51 Rules 14 and 17(9)
  • Civil Procedure Actsection 3A
  • Government Proceedings Actsection 21
  • Employment Actsection 90
  • ELRC Procedure RulesRule 28(3)

Cases cited (12)

  • Mutitika v Baharini Farm Ltd
    [1985] eKLR
  • John Mundia Njoroge & 9 others v Cecilia Muthoni Njoroge & another
    [2016] eKLR
  • Mukisa Biscuit Manufacturers Ltd v Westend Distributors Ltd
    [2]
  • Basil Criticos v Attorney General & 4 others
    [2012] e-KLR
  • Republic v The Attorney General & another Exparte James Alfred Kosoro
  • Daniel Otieno Okun v Kenyatta University
    [2020] eKLR
  • William Malii Mwanzia v General Motors East Africa Limited
    [2018] eKLR
  • Kenya Private Universities Workers Union v Presbyterian University of East Africa
    [2019] eKLR
  • Alfred Nyungu Kimungui v Bomas of Kenya
    Nairobi Industrial Cause No 620 of 2013
  • Rebecca Anne Maina and others v Jomo Kenyatta University of Agriculture and Technology
    Nairobi ELRC Cause No 1789 of 2013
  • Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others
    [2014] eKLR
  • Republic v Communication Authority of Kenya & another Ex-Parte Legal Advice Centre Aka Kituo Cha Sheria
    [2015] eKLR
Jurisdiction invoked
Article 162(2)(a) Constitution / ELRC employment and labour relations jurisdiction (application arising from a judgment of this Court; motion under Order 51 CPR)

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, "Njagi v Tharaka Nithi County Government (Cause 7 of 2020) [2024] KEELRC 599 (KLR)", Case Analysis (2024). ELRC Cause (Nyeri), Notice of Motion dated 8th December 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/599/eng@2024-03-08

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