[2018] KEELRC 954 (KLR)
The court found that the applicant failed to comply with the statutory requirements for instituting contempt proceedings, specifically by not establishing that the cited respondents were accounting officers as required by section 30(1) of the Contempt of Court Act, 2016, and by failing to serve a Notice to Show...
Source-derived case information.
- Citation
- [2018] KEELRC 954 (KLR)
- Parties
- Applicant: Charles Barongo Nyakeri; Respondent: County Government of Kisii; Respondent: Kisii County Public Service Board; Respondent: Robert Ombasa (Acting County Secretary/Head of County Public Service, County Government of Kisii); Respondent: James Elvis Omariba Ongwae (Governor Kisii County)
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Petition 10 of 2017
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection Regarding Contempt Application
- Outcome
- preliminary objection upheld; contempt application dismissed
- Judges
- DKN Marete
- Legal Topics
- Contempt of Court, Public Officer Liability, Compliance With Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Barongo Nyakeri
Applicant
County Government of Kisii
Respondent
Kisii County Public Service Board
Respondent
Robert Ombasa (Acting County Secretary/Head of County Public Service, County Government of Kisii)
Respondent
James Elvis Omariba Ongwae (Governor Kisii County)
Respondent
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection Regarding Contempt Application
Legal Issues
- 1 Whether the cited respondents are proper parties for contempt proceedings under section 30(1) of the Contempt of Court Act, 2016.
- 2 Whether the applicant complied with statutory requirements for instituting contempt proceedings, including service of Notice to Show Cause.
- 3 Whether the absence of rules by the Chief Justice under section 37 of the Contempt of Court Act affects the validity of contempt proceedings.
Ratio Decidendi
The court found that the applicant failed to comply with the statutory requirements for instituting contempt proceedings, specifically by not establishing that the cited respondents were accounting officers as required by section 30(1) of the Contempt of Court Act, 2016, and by failing to serve a Notice to Show Cause. The court held that these procedural lapses were fatal to the application, rendering it unsustainable. Consequently, the preliminary objection was upheld and the contempt application dismissed.
Court Disposition
preliminary objection upheld; contempt application dismissed
Orders
- The preliminary objection is allowed.
- Each party shall bear their own costs of the application.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA
AT KERICHO
PETITION NO. 10 OF 2017
(Before D. K. N. Marete)
CHARLES BARONGO NYAKERI..........................................................CLAIMANT
VERSUS
COUNTY GOVERNMENT OF KISII.........................................1ST RESPONDENT
KISII COUNTY PUBLIC SERVICE BOARD……...............…2ND RESPONDENT
ROBERT OMBASA ACTING COUNTY SECRETARY/ HEAD OF COUNTY
PUBLIC SERVICE,COUNTYGOVERNMENT OF KISII….3RD RESPONDENT
JAMES ELVIS OMARIBA ONGWAE
GOVERNOR KISII COUNTY…….........................................…4TH RESPONDENT
RULING
This is an application by way of a Preliminary Objection dated 26th January, 2018. It comes out as follows;
1. The 1st, 2nd, 3rd and 4th Respondents or officers cited for Contempt are not the accounting officer of the 1st and 2nd Respondents within the meaning of Section 30(1) of the Contempt of Court Act, 2016.
2. No Notice to Show Cause has been served upon the named officers or offices in accordance with the law.
3. The 1st , 2nd, 3rd and 4th Respondents cited for Contempt are not accounting officers within the meaning of the Public Finance Management Act, No. 18 of 2012 and the Regulations made thereunder-
4. The officers cited were not party to this suit and will greatly be disadvantaged and so cannot be made party to the current proceedings.
The matter came for hearing on 18th May, 2018 when Mr. Onsembe, counsel for the respondent/objector submitted that he would rely on the four pointed issues raised in support to the preliminary objection above. It was his further submission that section 30(1) of the Contempt of Court Act deals with issues of punishment against management of government organs.
The respondent/objector also submitted a case of non compliance by the applicant in that she has not satiated grounds 2 – 4 of the grounds of preliminary objection. The petitioner’s application lacks proper legal basis and is therefore unsustainable.
The petitioner/respondent opposes that the application on grounds as follows;
3. ….
4. The Chief Justice has not made rules under section 37 of The Contempt of Court Act, 2016 and therefore section 5 of The Judicature Act remains in force because 38 of The Contempt of Court Act has not taken effect.
5. Article 159 (2) (d) overrides the provisions of all the legislative acts of parliament.
The petitioner/respondent at the hearing relied on the above grounds in opposition to the preliminary objection. It was his case that contempt proceedings ensued from the misconduct of the respondents in refusing to comply with the consent orders of court in favour of the petitioner.
The case of the objector overwhelms that of the petitioner/respondent. Non-compliance with the law on contempt of court as enshrined in section 30 (1) of the Contempt of Court Act, 2016 renders the petitioner’s application fallible. This inaction is fatal and obliterates the efficacy of the application. It must therefore fail.
I am therefore inclined to allow the preliminary objection with orders that each party bears their costs of the application.
Delivered, dated and signed this 9th day of October, 2018.
D.K.Njagi Marete
JUDGE
Appearances
1. M/s. Onsembe and Wanyama instructed by County Attorney’s Offices for the respondent/objector.
2. Mr. Siele Sigira instructed by Siele Sigira & Company advocates for the petitioner/respondent.