Apuko, The Clerk, County Assembly of HomaBay v Gaya, The Speaker, County Assembly of HomaBay & 2 others (Petition E022 of 2024) [2025] KEELRC 1740 (KLR)
The bottom line
#Kenya's Employment Court found Homa Bay County Assembly Board members in contempt for ignoring a status quo order and must pay the suspended Clerk's salary.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction raised by respondents
The court declined to entertain the jurisdictional objection because it was raised late and only in submissions rather than by Notice of Preliminary Objection
The court found it disingenuous that respondents raised jurisdiction over eight months after the status quo order and after the preliminary objection had been dismissed, without filing a Notice of Preliminary Objection despite the Omweno decision having been delivered on 7th February 2025. The question of jurisdiction should be raised at the earliest instance. The respondents also did not challenge the status quo order on which the contempt application was grounded.
Status quo order of 23rd July 2024
Status quo means things remain as they were when the order was made; the order prohibited any further action against the applicant, including new disciplinary charges
Drawing on Black's Law Dictionary and case law, the court held that a status quo order preserves the situation as at the time of the order. The applicant was on suspension and the respondents were not to take further action. Initiating fresh charges by letters of 8th and 21st August 2024 was a thinly veiled attempt to circumvent the order.
Contempt of court by Board members
Current members of the Homa Bay County Assembly Service Board are in contempt of the 23rd July 2024 order
All elements of civil contempt were satisfied: the order was clear and binding, the members had knowledge through counsel, and they breached it by initiating new disciplinary proceedings. The attempt to camouflage disobedience with new charges demonstrated wilfulness and mala fides. The Board acts through its members as its alter ego.
Joinder of Board members
The four current Board members are necessary and proper parties and were joined as respondents
Applying Rule 5(d) of the Mutunga Rules and joinder jurisprudence, the court found that since relief was sought against the Board and its chairman, the current members who constitute the Board are necessary and proper parties whose presence enables the court to adjudicate effectively and completely.
Withheld salary and allowances
The applicant remains an employee on suspension and is entitled to the portion of salary and allowances payable during suspension under Section 17 of the Employment Act
The applicant was still an employee though suspended, and the respondents adduced no evidence of payment of what was due. The court ordered payment of the portion of salary and/or allowances payable to employees on suspension effective July 2024.
Legal principles established
#- Court orders must be obeyed; obedience is not optional and flagrant disobedience must be punished
- Standard of proof in contempt proceedings is higher than balance of probabilities, almost but not exactly beyond reasonable doubt
- Elements of civil contempt are the terms of the order, knowledge of the terms, and failure to comply, with wilfulness and bad faith inferred
- Misjoinder or non-joinder cannot defeat a suit
Court orders
#- 1.Respondent shall pay the applicant/petitioner the portion of salary and/or allowances payable to employees on suspension effective July 2024
- 2.Lilian Ogono, Joseph Okoto, Joan Ogada and Raphael Odongo be and are hereby added as respondents in these proceedings
- 3.Lilian Ogono, Joseph Okoto, Joan Ogada and Raphael Odongo shall appear in court virtually on 19th June, 2025 to show cause why they should not be punished for disobedience of a court Order
- 4.Petition be fixed for hearing and determination
- 5.2nd and 3rd respondents shall bear costs of this application
- 6.Status quo be maintained
- Jurisdiction invoked
- Employment and Labour Relations Court Act and Employment and Labour Relations Court (Procedure) Rules, 2016; Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, Rule 5(d)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Apuko, The Clerk, County Assembly of HomaBay v Gaya, The Speaker, County Assembly of HomaBay & 2 others (Petition E022 of 2024) [2025] KEELRC 1740 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1740/eng@2025-06-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.