Kenya County Government Workers Union & 30 Others v County Government of Nyeri & Nyeri County Public Service Board

3) THAT this Honorable court be pleased to find the County Secretary and the Secretary, Nyeri County Public Service Board in contempt of court for wilful and deliberate disobedience of the court orders issued on 11th December 2015. 4) THAT the County Secretary, County Government of Nyeri, and the Secretary, Nyeri County Public Service Board be committed to civil jail on such terms as the Honourable Court may deem fit unless they purge the contempt by honouring the court orders issued on 11th December 2015. 5) THAT the costs be provided for. 6) Any other relief the court deems fit to grant. 3. The Motion is premised on the grounds set out on its face and is supported by the joint affidavit sworn on 13th April 2026 by Peterson Ndiritu Mwangi, Samuel Wambugu Ndirangu and Lydia Wangechi Kamaru. The deponents aver that they were authorised by the other 27 Applicants to institute the instant application. 4. The Applicants aver that on 11th December 2015, this Court (differently constituted) issued restraining and prohibitory orders against the Respondents. 2

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They contend that, despite being aware of the said orders and the resultant decree, the Respondents have continued to engage in acts that have halted and/or disrupted their employment and livelihoods, which acts, in their view, amount to contempt of court. 5. The Applicants further aver that the delay in filing the instant application was occasioned by negotiations between them and the Respondents concerning the implementation of the Court's orders. According to the Applicants, the negotiations have not borne any fruit. 6. It is their contention that, despite repeated requests, the Respondents have failed and/or neglected to comply with the orders of the Court. 7. The Motion is opposed through a joint Replying Affidavit sworn on 28 th April 2026 by Edward Irungu Mwangi, the County Secretary of the County Government of Nyeri, the 1st Respondent herein. 8. Mr. Mwangi deposes that following the delivery of the judgment and issuance of the final orders by the Court, the advocates on record for the Applicants engaged the Respondents with a view to resolving the matter and facilitating implementation of the Court's directions. 3

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9. He avers that the Respondents undertook to implement the judgment in good faith and within the limits of their administrative and legal mandate. 10.Mr. Mwangi states that the County Public Service Board constituted a taskforce to consider the position of the casual workers affected by the judgment and to formulate recommendations to the Board on the appropriate manner of bringing the matter to conclusion. 11.According to Mr. Mwangi, the taskforce comprised, among others, officials of the Kenya County Government Workers Union who were conversant with the matter. 12.Mr. Mwangi further deposes that the taskforce's recommendations were subsequently adopted by the Respondents for implementation. He states that the dues payable to the casual workers affected by the judgment were duly calculated and provision made for the same in the County's budget. 13.He further states that, in compliance with the Court's judgment, the 1st Respondent terminated the employment of the Petitioner's members on various grounds, including attainment of the retirement age and failure to meet the minimum qualifications required for continued engagement. 4

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14.Mr. Mwangi maintains that the terminations were undertaken in accordance with the law and that the affected employees were paid their terminal dues through their respective bank accounts, thereby bringing the matter to a conclusion. 15.Mr. Mwangi further contends that two of the Applicants, namely Beatrice Wambui and Lucy Maina, were not included in the original list of petitioners before the Court and were, consequently, not bound by the judgment. 16.He also challenges the Applicants' locus standi, contending that they have not filed a notice indicating their intention to act in person, whereas the original Petition was instituted by the Union on their behalf and the Union was represented by an advocate. 17.Mr. Mwangi further contends that the Applicants have failed to particularise the manner in which the Respondents are alleged to have breached or failed to comply with the orders of the Court. 18.Mr. Mwangi is categorical that the 1st Respondent has fully complied with the Court's orders and has taken all necessary steps to align its employment practices with the Constitution and the Employment Act, as directed in the decree. 5

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Submissions 19.The Motion was canvassed by way of written submissions. Both parties filed written submissions which the Court has considered. On the Applicants’ part, it has been submitted that the Respondents disobeyed the orders of the Court by terminating them, failed to convert their employment terms and further dismissed them without following the law or their terms of employment. That further, the Respondents breached the restraining order against terminating the union members. In this regard, the Applicants submitted that the Respondent’s actions caused them irreparable harm and violated their rights under Article 41(1) and (2) of the Constitution. 20.The Applicants have further submitted that the terminations were carried out through a taskforce committee, which was a "creature" of the Respondents. They argue that it was set up to defeat the court orders. 21.It is the Applicants' position that court orders cannot be flouted with impunity. They submit that the court must protect its dignity and authority by punishing the disobedience. To this end, the Applicants have urged the Court to allow the application as prayed. 6

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22.On the other hand, the Respondents have termed the instant application as misconceived, frivolous, vexatious and an abuse of the court process. They maintain that there was no wilful or deliberate disobedience. 23.The Respondents have posited that following the judgment, they engaged the Applicants’ Union and established a Taskforce Committee to recommend how the judgment should be implemented. According to the Respondents, the recommendations of the Taskforce Committee were subsequently implemented. 24.Referencing the case of Mwangi v Wambui & another [2026] KEHC 9282 (KLR) and Mutitika v Baharini Farm Ltd [1985] KLR 227, the Respondents have submitted that the Applicants have failed to demonstrate wilful disobedience or bad faith. On this score, they contend that contempt proceedings are quasi-criminal and require a standard of proof higher than a balance of probabilities, though not exactly beyond reasonable doubt. 25.The Respondents have further argued that they acted in good faith and within their administrative and legal capacity. They contend that because the Applicants were no longer in the County’s service and there was no order for reinstatement, their engagement had to be terminated lawfully. That further, their terminal dues were consequently calculated and paid. 7

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26.It is the Respondents’ further submission that conversion of the Applicants’ terms of service could only apply to those who met the minimum qualifications for employment in the county public service. They further contend that any reengagement had to comply with constitutional and public-service recruitment requirements, including Article 232(1)(g) of the Constitution on fair competition and merit, as well as applicable Public Service Commission regulations. It is the Respondents' position that the affected workers were therefore encouraged to apply afresh for advertised positions. 27.The Respondents maintain that the Taskforce committee involving Union representatives made recommendations which were implemented and that the employees’ dues were computed and budgeted for, and payments were made. Analysis and Determination 28.Having considered the Notice of Motion, the Respondents’ Replying Affidavit and the parties' written submissions, the Court finds that the singular issue for determination is whether the instant application is merited. 29.As can be discerned from the Motion, the Applicants seek an order requiring the County Secretary of the County Government of Nyeri and the Secretary to the County Public Service Board to appear before the Court and show cause 8

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why they should not be cited for contempt of the orders issued on 11 th December 2015 and committed to civil jail on such terms as the Court may deem fit, unless and until they purge the alleged contempt by complying with the said orders. 30.At the outset, it is noteworthy that the officers sought to be cited for contempt have not been identified by name. Indeed, the application does not disclose the identities of the persons against whom the contempt proceedings are directed. This omission is significant, particularly given that the persons sought to be cited are not parties to these proceedings. In the circumstances, I cannot help but question the identity of the alleged contemnors against whom the orders sought are intended to operate. 31.Given the personal nature and potentially serious consequences of contempt proceedings, the burden lay upon the Applicants to clearly identify the persons alleged to be in contempt and to ensure that the requisite application and supporting documents were duly served upon them. The failure to identify the alleged contemnors with sufficient particularity is, therefore, fatal to the application. 9

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32.Another issue that comes to the fore relates to compliance with the statutory framework governing the enforcement of the decree in question. In this regard, it is notable that the 1st Respondent is a County Government established pursuant to Article 176 of the Constitution, while the 2nd Respondent is a statutory organ of the County Government established pursuant to Section 57 of the County Governments Act. 33.It therefore follows that enforcement of a decree against the Respondents is subject to the procedure prescribed under Section 21 of the Government Proceedings Act, which provides as follows: “21(1)Where in any civil proceedings by or against the Government, or in proceedings in connection with any arbitration in which the Government is a party, any order (including an order for costs) is made by any court in favour of any person against the Government, or against a Government department, or against an officer of the Government as such, the proper officer of the court shall, on an application in that behalf made by or on behalf of that person at any time after the expiration of twentyone days from the date of the order or, in case the order provides for the payment of costs and the costs require to be taxed, at any time after the costs have been taxed, whichever is the later, issue to that person a 10

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certificate in the prescribed form containing particulars of the order: Provided that, if the court so directs, a separate certificate shall be issued with respect to the costs (if any) ordered to be paid to the applicant. (2)A copy of any certificate issued under this section may be served by the person in whose favour the order is made upon the Attorney-General. (3) If the order provides for the payment of any money by way of damages or otherwise, or of any costs, the certificate shall state the amount so payable, and the Accounting Officer for the Government department concerned shall, subject as hereinafter provided, pay to the person entitled or to his advocate the amount appearing by the certificate to be due to him together with interest, if any, lawfully due thereon: Provided that the court by which any such order as aforesaid is made or any court to which an appeal against the order lies may direct that, pending an appeal or otherwise, payment of the whole of any amount so payable, or any part thereof, shall be suspended, and if the certificate has not been issued may order any such direction to be inserted therein. (4) Save as aforesaid, no execution or attachment or process in the nature thereof shall be issued out of any such court for enforcing payment by the Government of any such money or costs as aforesaid, and no person shall be individually liable under any order for the payment by the Government, 11

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or any Government department, or any officer of the Government as such, of any money or costs. (5) This section shall, with necessary modifications, apply to any civil proceedings by or against a county government, or in any proceedings in connection with any arbitration in which a county government is a party.” 34.Notably, there is no evidence on record to demonstrate that the execution process initiated by the Applicants against the Respondents was undertaken in accordance with the procedure prescribed under Section 21 of the Government Proceedings Act. In particular, the Applicants have neither demonstrated that they obtained a Certificate of Order against Government nor that such certificate was duly served upon the Respondents. 35.Further, in seeking to compel compliance with the decree, the Applicants were required to invoke the appropriate judicial process by instituting Judicial Review proceedings and seeking an order of mandamus to compel the relevant officers of the Respondents to comply with the decree of the Court. On this point, the Court is guided by the decision of Odunga J. (as he then was) in Republic v Attorney General & Another, Ex parte James Alfred Koroso [2013] eKLR, where the Court held as follows: 12

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“Where therefore a public officer declines to perform the duty after the issuance of an order of mandamus, his/her action amounts to insubordination and contempt of court hence an action may perfectly be commenced to have him cited for such. Such contempt proceedings are no longer execution proceedings but mean to show the courts displeasure at the failure by a servant of the state to comply with the directive of the court given at the instance of the Republic, the employer of the concerned public officer and to uphold the dignity and authority of the court.” 36.Accordingly, the County Secretary of the County Government of Nyeri and the Secretary to the Nyeri County Public Service Board may only be held personally liable for contempt where it is demonstrated that they are under a legal duty to perform the act required of the Respondents by the decree of the Court. 37.In this regard, the appropriate mechanism for establishing and enforcing such a legal duty is through Judicial Review proceedings seeking an order of mandamus. It is only upon the issuance of an order of mandamus compelling the said officers to discharge a public duty, followed by a failure to comply with 13

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that order, that contempt proceedings may properly be instituted against the officers. 38.In view of the foregoing, the Court finds that the prayer seeking to summon the County Secretary of the County Government of Nyeri and the Secretary to the Nyeri County Public Service Board to appear before the Court and show cause why they should not be cited for contempt is premature. This is because the Applicants have not first instituted Judicial Review proceedings and obtained an order of mandamus compelling the said officers to discharge the alleged public duty. 39.For the foregoing reasons, the Notice of Motion dated 13 th April 2026 is disallowed with no orders as to costs. DATED, SIGNED and DELIVERED at NYERI this 25th day of September 2026. ……………………………… STELLA RUTTO JUDGE In the presence of: For the Applicants In person For the Respondents No appearance 14

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Court Assistant Ndati ORDER In view of the declaration of measures restricting court operations due to the COVID19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21 st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court had been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes. STELLA RUTTO JUDGE 15

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