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ELRCDismissedNot stated in the judgment (Petition; application by Notice of Motion dated 12th April 2024)

Yaseen v Cabinet Secretary, Ministry of ICT, Innovation & Youth Affairs & 2 others; Kenya Broadcasting Corporation (Interested Party) (Employment and Labour Relations Petition E119 of 2022) [2025] KEELRC 1718 (KLR)

Employment and Labour Relations Court
12 June 2025
2,266 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to jail Cabinet Secretary Eliud Owalo for breaking a settlement order, finding the missed appointment wasn't deliberate since no matching job vacancy existed.

What this practically means

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Executive summary

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The Petitioner/Applicant, Dr. Naim Bilal, moved the court by Notice of Motion dated 12th April 2024 under the Judicature Act seeking the committal to civil jail of Eliud Owalo, Cabinet Secretary for Information, Communications and the Digital Economy, and/or his successors, and the Principal Secretary, for disobedience of a consent order recorded on 12th October 2023 and adopted as a judgment of the court, with a Decree issued thereafter. The consent obliged the Ministry to consider the Applicant's appointment to a position equivalent to Managing Director in the Public Service and to pay him Kshs. 7,868,733.20 in full and final settlement. The Respondents opposed, arguing no personal service of any order, absence of statutory prescription of the contempt offence and sentence contrary to Article 50(2)(p), and substantial compliance, having paid the entire decretal sum, with the appointment impossible because no equivalent vacancy existed. The court held that section 5 of the Judicature Act remains the applicable law on contempt following the unconstitutionality of the Contempt of Court Act, and that courts possess inherent powers to punish contemnors subject to fair procedures. It found the first three elements of civil contempt proved - clear terms, knowledge (service being unnecessary given the Respondents' voluntary execution of the consent and representation when it was adopted) and breach - since only partial payment had initially been made and the appointment never occurred. However, on the fourth element of deliberateness, the court accepted the Respondents' assertion that no equivalent vacancy existed and found no evidence of deliberate non-compliance; the full decretal sum had since been paid. The application was therefore disallowed with no order as to costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether Eliud Owalo, Cabinet Secretary and/or his successors, and the Principal Secretary should be committed to civil jail for disobedience of a consent order and Decree issued on 29th October 2023
  2. 2.Whether the elements of civil contempt, particularly deliberateness of the breach, were established against the Respondents

Key legal issues

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01

Statutory basis for contempt jurisdiction

Holding

Section 5 of the Judicature Act, Cap 8, empowers the High Court and Court of Appeal to punish for contempt, and remains the applicable law after the Contempt of Court Act was declared unconstitutional

Reasoning

The court set out section 5(1) and (2) of the Judicature Act and rejected the Respondents' argument that no law prescribed the offence or sentence for contempt. It relied on the apex court's guidance on inherent powers and on authority holding that section 5 of the Judicature Act is the only statutory basis for contempt in the High Court and Court of Appeal following the demise of the Contempt of Court Act.

p. 3
02

Service and knowledge of the consent order

Holding

Personal service was unnecessary because the Respondents executed the consent voluntarily and were represented in court when it was adopted as an order; their advocate's knowledge suffices

Reasoning

The court found the consent was executed by both parties and adopted as an order of the court with the Respondents present through state counsel. Relying on Shimmers Plaza, knowledge of the order by the advocate present in court suffices, since an advocate appearing for a party is bound to report back to the client on all that transpired.

p. 4
03

Whether the breach was deliberate

Holding

The fourth element of civil contempt, deliberateness, was not established because the Respondents asserted no equivalent vacancy existed and there was no evidence of deliberate failure

Reasoning

Although the Applicant proved the first three elements, the court found the Respondents' claim that no vacancy equivalent to Managing Director existed persuasive. It noted open questions about whether the vacancy arose and whether the Respondents could appoint directly under Article 10, and found no evidence of deliberate non-compliance; the decretal sum had also been fully paid.

p. 5

Legal principles established

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  • Section 5 of the Judicature Act is the applicable statutory basis for contempt of court following the declaration of unconstitutionality of the Contempt of Court Act
  • The elements of civil contempt are: clear and unambiguous terms of the order; knowledge or notice of the terms; breach; and deliberate conduct, with willfulness and bad faith inferred on proof of the first three unless rebutted
  • Knowledge of an order by a party's advocate who was present in court when it was made suffices for contempt proceedings; personal service is unnecessary where the party voluntarily executed the consent

Court orders

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  1. 1.The court declined to commit Eliud Owalo, Cabinet Secretary, and/or his successors, and the Principal Secretary to civil jail for disobedience of the consent order and Decree
  2. 2.The application dated 12th April 2024 is disallowed
  3. 3.No order as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Section 5 of the Judicature Act, Cap 8, Laws of Kenya (contempt of court jurisdiction)

Relief refused

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Committal to civil jail of the Cabinet Secretary and/or his successors and the Principal Secretary for disobedience of the consent order and Decree

Although the first three elements of civil contempt were proved, the court was not satisfied that the failure to appoint the Applicant to a position equivalent to Managing Director was deliberate, given the asserted absence of such a vacancy; the decretal sum had been fully paid

p. 5

Costs

The application is disallowed with no order as to costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is an established principle of law that in order to succeed in civil contempt proceedings, the applicant has to prove i. the terms of the order, ii. knowledge of these terms by the Respondent, iii. failure by the Respondent to comply with the terms of the order.
p. 4Elements of civil contempt
The question of whether they were served with the order does not arise, owing to their voluntary execution of the consent, and because they were present in court through a state counsel from the Office of the Attorney General, when the consent was adopted as an order of the Court.
p. 4Knowledge of order as substitute for service
I find and hold that the application has not met the threshold of civil contempt against the respondents for failure to appoint the applicant as a Managing Director in the Public Service.
p. 5Finding on deliberateness
The application is disallowed with no order as to costs.
p. 5Final orders
the court declines to issue the order sought, namely:- That Eliud Owalo, Cabinet Secretary Ministry of Information, Communications and the Digital Economy and/or his successors and the Principal Secretary Ministry of Information, Communications and The Digital Economy be committed to civil jail for disobedience of a consent order and Decree issued on 29th October 2023
p. 5Relief refused - committal to civil jail

Issues in the judgment

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minor

Date of adoption of consent order is inconsistent: grounds state the consent was recorded and adopted on 29th October 2023, but the body of the judgment states 26th October 2023

minor

Paragraph 12 states the Applicant failed to comply where the Respondents were meant; the context indicates a typographical error

minor

The consent letter as quoted records the settlement sum as Kshs. 7,868,733.20, while the judgment elsewhere records the decretal sum paid as Kshs. 7,585,733.20

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, "Yaseen v Cabinet Secretary, Ministry of ICT, Innovation & Youth Affairs & 2 others; Kenya Broadcasting Corporation (Interested Party) (Employment and Labour Relations Petition E119 of 2022) [2025] KEELRC 1718 (KLR)", Case Analysis (2025). Not stated in the judgment (Petition; application by Notice of Motion dated 12th April 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1718/eng@2025-06-12

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