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ELRCDismissedNotice of Motion dated 17th July 2024 (Cause number not stated in judgment)· [2024] KEELRC 2776 (KLR)

Bunde & 10 others v Family Health Options Kenya (Employment and Labour Relations Cause E161 of 2023) [2024] KEELRC 2776 (KLR)

Employment and Labour Relations Court
8 November 2024
AMAnna Ngibuini Mwaure
1,820 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court dismissed 11 ex-employees' contempt application because the employer proved it paid their dues, minus lawful tax deductions, through their advocates.

What this practically means

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Executive summary

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The claimants/applicants filed a Notice of Motion dated 17th July 2024 seeking a declaration that the respondent, its Executive Director Mr. Edward Marienga, and board members were in civil contempt of orders issued by the court on 8th November 2023 pursuant to a consent executed on 7th November 2023. The consent required the respondent to settle dues owed to 11 claimants by instalments, subject to PAYE, and to issue certificates of service. The applicants alleged an unpaid balance of Kshs. 2,204,632.91 and sought sanctions including committal to civil jail for six months or a fine of Kshs. 500,000, denial of audience until the contempt was purged, payment of the outstanding dues, and costs on a full indemnity basis. The respondent contended it had paid the entire amount due, remitting Kshs. 3,418,875.60 through the claimants' advocates after statutory deductions, and that the application was vexatious. The court, applying the test in Samuel M. N. Mweru v National Land Commission, noted Kenya has no operative statute governing contempt following the invalidation of the Contempt of Court Act, reverting to section 5 of the Judicature Act. It found that statutory deductions were permissible, the consent providing for payment less PAYE. Finding no evidence of deliberate disobedience, the court held contempt was not proved and the application lacked merit. It dismissed the application, directed each party to bear their own costs, and urged the parties to reconcile any residual amounts out of court, with mention on 19th December 2024.

Key legal issues

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01

Whether the respondent disobeyed the orders of 8th November 2023 arising from the consent of 7th November 2023

Holding

Contempt was not proved; the respondent showed it remitted the amounts due less statutory deductions through the claimants' advocates

Reasoning

The court applied the elements of civil contempt: clear terms of the order, knowledge, breach, and deliberate conduct. The respondent produced a schedule showing payment of Kshs. 3,418,875.60 after statutory deductions. The consent itself provided for payment subject to PAYE, and taxes must be deducted under section 49(1)(c) of the Employment Act 2007. Absent evidence of deliberate disobedience, the willfulness inference was not sustained and the application failed.

p. 4

Legal principles established

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  • To succeed in civil contempt proceedings, the applicant must prove the terms of the order, knowledge of those terms by the respondent, and failure to comply; willfulness and bad faith are then inferred unless rebutted on a balance of probabilities
  • Statutory deductions such as PAYE are lawfully deductible from amounts payable under a consent, where the consent provides for payment less statutory deductions

Court orders

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  1. 1.The Notice of Motion dated 17th July 2024 is dismissed
  2. 2.Each party to meet their own costs of the application
  3. 3.Parties may meet and agree on any other amounts owed to the claimants and inform the court on 19th December 2024
  4. 4.Mention on 19th December 2024

Authorities

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Legislation

  • Employment Actsection 51; section 49(1)(c)
  • Judicature Actsection 5
  • Income Tax Actsection 19(1)(f) as read with sub-sections (4) and (5)
  • Constitution of KenyaArticles 10 and 118(b); Article 159(2)(d); Article 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Contempt of Court Act No. 46 of 2016declared invalid for lack of public participation

Cases cited (7)

  • Republic V Kenya School of Law & 2 Others Ex parte Juliet Wanjiru Njoroge & 5 others
    [2015] eKLR
  • Republic V the Municipal Secretary, Ministry of Defence
    Misc. Application No. 276 of 2015
  • Council of Governors V Seth Panyako and Others
    Cause No. 69 of 2019
  • Hellen Gesera Ayoti (suing as the legal representatives of the Estate of the Late Justus Momanyi Ayot) V P.N Mashru
    [2016] eKLR
  • Co-operative Bank of Kenya Ltd V Erastus Kihara Mureithi
    [2013] eKLR
  • Kenya Human Rights Commission vs. Attorney General & Another
    [2018] eKLR
  • Samuel M. N. Mweru & Others V National Land Commission & 2 others
    [2020] eKLR
Jurisdiction invoked
Jurisdiction invoked in support of civil contempt proceedings under section 5 of the Judicature Act; not stated in the judgment as a constitutional basis

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, "Bunde & 10 others v Family Health Options Kenya (Employment and Labour Relations Cause E161 of 2023) [2024] KEELRC 2776 (KLR)", Case Analysis (2024). Notice of Motion dated 17th July 2024 (Cause number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2776/eng@2024-11-08

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