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ELRCDismissedNairobi ELRC Cause No. E187 of 2022· [2024] KEELRC 1041 (KLR)

Maitha v Kenyatta University (Cause E187 of 2022) [2024] KEELRC 1041 (KLR)

Employment and Labour Relations Court
18 April 2024
4,216 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to jail Kenyatta University officials for contempt because the university genuinely believed its reasons for not fully complying justified its conduct.

What this practically means

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Executive summary

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Dr. Joseph Maingi Maitha, an employee of Kenyatta University suspended indefinitely from 24th February 2020, moved the court by Notice of Motion dated 9th October 2023 under Section 5(1) of the Judicature Act and Order 51 Rule 1 of the Civil Procedure Rules, seeking a finding that the university's officers were in contempt of the ruling of 20th September 2022, committal of the Vice-Chancellor to civil jail, a fine against the Respondent, an order to purge the contempt, and costs. The earlier ruling had directed the Respondent to conclude disciplinary proceedings and/or lift the suspension within 45 days and to pay the unpaid 50% salary. The applicant complained that only Kshs.1,227,764/- was paid against a computation of Kshs.7,608,599.5 and that the suspension was never lifted. The Respondent attributed the failure to the nullification of UASU elections, which left the disciplinary board without the union representation required by Clause 8 of the CBA, denying wilful disobedience. The court, Gakeri J, held that court orders are sacrosanct but that contempt must be proved wilfully and with mala fides to a standard higher than a balance of probabilities but below beyond reasonable doubt. While the orders were clear and known to the Respondent, and the court censured it for failing to seek review, appeal or disclosure of the stalemate, the wilful element was not demonstrated and the Respondent bona fide believed non-compliance justified. The court also found salary excluded allowances. The application was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether the Respondent wilfully disobeyed the orders of 20th September, 2022

Holding

The application was dismissed. The Respondent arguably complied with the salary order (salary being basic salary only, exclusive of allowances) and, on the lifting of suspension, no wilful or mala fides breach was proved because the stalemate in UASU elections gave it a bona fide belief in justification.

Reasoning

The court applied the three elements from Carey v Laiken: a clear order, knowledge, and intentional breach. The first two were satisfied, but the applicant failed to show deliberate and mala fides non-compliance. The court criticised the Respondent for not seeking review or appeal and for its inaction, but held this fell short of contempt. The contempt power was to be exercised sparingly.

p. 8
02

Whether the unpaid 50% salary included allowances

Holding

The order covered basic salary only; the Respondent's payment of Kshs.1,227,764/- amounted to compliance.

Reasoning

The order was explicit that only unpaid salary was payable, and the applicant had not sought review, appeal or clarification of the ruling, so his broader interpretation was unsustainable.

p. 5

Legal principles established

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  • Court orders are sacrosanct, enjoy the force of law and must be obeyed by those against whom they are directed
  • The standard of proof in contempt proceedings is higher than a balance of probabilities but lower than beyond reasonable doubt
  • The elements of civil contempt are a clear and unequivocal order, actual knowledge of it, and intentional breach; a bona fide belief in justification negates the mens rea
  • The power to punish for contempt is discretionary and should be used sparingly as a power of last resort

Court orders

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  1. 1.The applicant's Notice of Motion dated 9th October, 2023 is declined
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Judicature ActSection 5(1)
  • Judicature ActSection 51
  • Civil Procedure Rules, 2010Order 51 Rule 1
  • Civil Procedure RulesOrder 21 Rule 1
  • Employment Act, 2007general
  • Civil Procedure Act (Chapter 21)Section 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (16)

  • Edward Muriga through Stanley Muriga V Nathaniel D. Schulter
    Civil Appeal No. 23 of 1977
  • Shimmers Plaza Ltd V National Bank of Kenya Ltd
    (2015) eKLR
  • Kenya Human Rights Commission V Attorney General & another
    (2018) eKLR
  • Petition No. E043 of 2021 consolidated with Petition No. E093 of 2021 Frankline Kaburu Kinoti & 3 others V University Academic Stafi Union (UASU) Executive Kenyatta University Chapter & 3 others; Kenyatta University (Interested Party)
    2021 eKLR
  • Miguna Miguna V Dr. Fred Matiangi & 7 others
    (2018) eKLR
  • Hadkinson V Hadkinson
    (1952) ALL ER
  • Econet Wireless Kenya Ltd V Minister for Information of Kenya & another
    (2005) eKLR
  • Gullab Chand Popatlal Shah & another
    Civil App No. 39 of 1990
  • Teachers Service Commission V Kenya National Union of Teachers and 2 others
    (2013) eKLR
  • Republic V Attorney General & another Ex Parte Mike Maina Kamau
    (2020) eKLR
  • Gatharia K. Mutitika V Baharini Ltd
  • Carey V Laiken
    2015 SCC 117
  • Katsuri Ltd V Kapurchand Depar Shah
    (2016) eKLR
  • Mahinderjit Singh Bitta V Union of India & others
    IA No. 10 of 2010
  • Indian Airports Employees Union V Ranjan Catterjee & another
    AIR 1999 SC 880: 1999 (2) SCC 537
  • Sheila Cassatt Issenberg & another V Anthony Machatha Kinyanjui
    (2021) eKLR
Jurisdiction invoked
Section 5(1) of the Judicature Act and Order 51 Rule 1 of the Civil Procedure Rules, 2010

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, "Maitha v Kenyatta University (Cause E187 of 2022) [2024] KEELRC 1041 (KLR)", Case Analysis (2024). Nairobi ELRC Cause No. E187 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1041/eng@2024-04-18

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