Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedNot stated in the judgment (contempt application dated 13.02.2023 within a claim by the claimants against the respondents)· [2024] KEELRC 801 (KLR)

Mwalali & 19 others v Radio Frequency Systems Limited & 2 others (Cause 305 of 2019) [2024] KEELRC 801 (KLR)

Employment and Labour Relations Court
17 April 2024
BOByram Ongaya
1,400 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

A Kenyan court refused to jail an advocate and a director over missing Kshs.29 million because the contempt case was poorly prepared and belongs before the Advocates Complaints Commission.

What this practically means

#

Executive summary

#
The 1st respondent, through the supporting affidavit of its CEO and Director Simon Wallington Horner, moved the court by notice of motion dated 13.02.2023 seeking committal of the 2nd respondent (Evans A. Ongicho Advocate) and the 3rd respondent to civil jail for disobeying consent orders issued on 19.06.2019, under which the 1st respondent transferred Kshs. 29,103,892.50 to the 2nd respondent's account for payment of salary arrears and terminal dues to the claimants. The applicant alleged the funds were never paid to the claimants and sought an order compelling the respondents to render accounts and purge the contempt. The 2nd respondent opposed, contending the court was functus officio, that partial payments were made, and that the matter was before the Advocates Complaints Commission. The 3rd respondent argued he was not a party to the suit, that the company is a separate legal entity, and that contempt was not particularised against him. The court found the applicant had failed to exhibit the extracted order or establish the particulars of contempt, that contempt must be proved beyond reasonable doubt, and that the correspondence relied upon showed the Commission's investigations were not finalised. The court held the dispute was rooted in the advocate-client relationship and properly routed under the Advocates Act, and that the alleged contempt against the 3rd respondent was remote and unfounded. The contempt application dated 13.02.2023 was dismissed with costs.

Key legal issues

#
01

Whether contempt of the consent order of 19.06.2019 was established

Holding

Contempt was not established against either cited respondent

Reasoning

The order said to be disobeyed was on record but the extracted order was not exhibited, and the application and supporting affidavit did not set out the particulars of contempt against the two respondents. Contempt being quasi-criminal, the standard of proof is beyond reasonable doubt, and the applicant relied only on correspondence from the Advocates Complaints Commission which had not finalised its investigations.

p. 4
02

Whether the court should entertain a contempt application where the dispute is before the Advocates Complaints Commission

Holding

The dispute is an advocate-client matter properly before the Commission under the Advocates Act

Reasoning

The claimants themselves had treated the dispute as an advocate-client concern and filed a complaint with the Advocates Complaints Commission under section 53 of the Advocates Act. The concerns about the decretal sum received by the 2nd respondent Advocate arise from that relationship and not from non-satisfaction of the decree, so the Advocates Act procedure applies.

p. 4
03

Whether the 3rd respondent could be committed for contempt

Holding

No contempt was shown against the 3rd respondent

Reasoning

The 3rd respondent, a director and shareholder of the 1st respondent, was said to be a separate legal entity from the company, was not shown to have any duty to comply with the order, and was not a party to the suit. The court found the alleged contempt against him remote and unfounded.

p. 4

Legal principles established

#
  • A party seeking committal for contempt must exhibit the extracted order and establish the particulars of the contempt alleged
  • Contempt must be proved beyond reasonable doubt
  • An advocate-client dispute over decretal funds is properly routed under the Advocates Act rather than as contempt proceedings

Court orders

#
  1. 1.The application for contempt dated 13.02.2023 filed for the 1st respondent is dismissed
  2. 2.Costs of the application awarded against the applicant

Authorities

#

Legislation

  • Constitution of KenyaArticles 25(c), 50(1), 159(2)(b) and (c), 162(1) and (2)(b)
  • Civil Procedure Act, Cap 21Sections 1A, 1B, 3, 3A, 63 and 80
  • Civil Procedure RulesOrder 9 rule 9(a)
  • Employment and Labour Relations Court Act, Cap 234BSections 12 and 13
  • Judicature Act, Cap 8Section 5
  • Civil Procedure (Amendment No.2) Rules, 2012 of EnglandPart 81 (Applications and Proceedings in Relation to Contempt of Court)
  • Advocates ActSection 53
Jurisdiction invoked
Articles 50(1), 159(2)(b) and (c) and 162(1) and (2)(b) of the Constitution; sections 12 and 13 of the Employment and Labour Relations Court Act; sections 1A, 1B, 3, 3A and 63 of the Civil Procedure Act; Order 9 rule 9(a) of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Mwalali & 19 others v Radio Frequency Systems Limited & 2 others (Cause 305 of 2019) [2024] KEELRC 801 (KLR)", Case Analysis (2024). Not stated in the judgment (contempt application dated 13.02.2023 within a claim by the claimants against the respondents). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/801/eng@2024-04-17

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