Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially Allowed· [2025] KEELRC 1740 (KLR)

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)

Employment and Labour Relations Court
16 June 2025
6,736 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

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

#
The Applicant/Petitioner, the suspended Clerk of the County Assembly of Homa Bay, moved the court by Notice of Motion dated 22nd August 2024 seeking conservatory orders restraining a disciplinary hearing and removal from office, a stay of the Speaker's letters of 8th and 21st August 2024, payment of withheld salaries, joinder of the current members of the Homa Bay County Assembly Service Board, and citation of those members for contempt of the court's order of 23rd July 2024 maintaining the status quo. The respondents opposed, arguing the application introduced new grounds, that the court lacked jurisdiction, and that as the applicant remained an employee the Board retained disciplinary control. The court declined to engage with the nullity principle and held the jurisdictional objection was improperly raised late and only in submissions rather than by Notice of Preliminary Objection. It unpacked the meaning of status quo, holding the 23rd July 2024 order required matters to remain as they were, and found that the Board members, through new charges in the letters of 8th and 21st August 2024, wilfully and mala fide breached the order. All elements of civil contempt were satisfied, and the four current Board members stand cited for contempt, to appear on 19th June 2025 to show cause why they should not be punished. The four members were joined as necessary and proper respondents. The court declined a conservatory order against advertising for the position, holding there was no evidence of such plans, and held the impugned letters legally ineffectual, observing no conservatory order is needed to restrain disobedience of court orders. The respondent was ordered to pay the salary portion and allowances due to an employee on suspension effective July 2024, status quo was to be maintained, and the 2nd and 3rd respondents were to bear the costs of the application.

Key legal issues

#
01

Jurisdiction raised by respondents

Holding

The court declined to entertain the jurisdictional objection because it was raised late and only in submissions rather than by Notice of Preliminary Objection

Reasoning

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.

p. 5
02

Status quo order of 23rd July 2024

Holding

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

Reasoning

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.

p. 8
03

Contempt of court by Board members

Holding

Current members of the Homa Bay County Assembly Service Board are in contempt of the 23rd July 2024 order

Reasoning

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.

p. 11
04

Joinder of Board members

Holding

The four current Board members are necessary and proper parties and were joined as respondents

Reasoning

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.

p. 13
05

Withheld salary and allowances

Holding

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

Reasoning

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.

p. 13

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. 1.Respondent shall pay the applicant/petitioner the portion of salary and/or allowances payable to employees on suspension effective July 2024
  2. 2.Lilian Ogono, Joseph Okoto, Joan Ogada and Raphael Odongo be and are hereby added as respondents in these proceedings
  3. 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. 4.Petition be fixed for hearing and determination
  5. 5.2nd and 3rd respondents shall bear costs of this application
  6. 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.