[2018] KEELRC 363 (KLR)
The court held that since the Contempt of Court Act, which formed the substantive basis of the applicant's motion, had been declared unconstitutional and invalid by the High Court in Kenya Human Rights Commission v Attorney General & another (2018) eKLR, it was not open to this court, being of concurrent...
Source-derived case information.
- Citation
- [2018] KEELRC 363 (KLR)
- Parties
- Claimant: Dr Edwin Gichangi; Respondent: Kenya Cultural Centre
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 998 of 2018
- Procedural Posture
- Employment Cause / Ruling on Contempt Application
- Outcome
- application dismissed/terminated
- Judges
- MSA Makhandia
- Legal Topics
- Contempt of Court, Constitutionality of Statutes, Public Participation, Employment Dispute Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dr Edwin Gichangi
Claimant
Kenya Cultural Centre
Respondent
Procedural Posture
Employment Cause / Ruling on Contempt Application
Legal Issues
- 1 Whether the application for contempt can be sustained following the declaration of invalidity of the Contempt of Court Act.
- 2 Whether a court of concurrent jurisdiction can disregard a declaration of unconstitutionality by another court.
Ratio Decidendi
The court held that since the Contempt of Court Act, which formed the substantive basis of the applicant's motion, had been declared unconstitutional and invalid by the High Court in Kenya Human Rights Commission v Attorney General & another (2018) eKLR, it was not open to this court, being of concurrent jurisdiction, to disregard that declaration. Consequently, the application for contempt could not be sustained and was terminated. The court further noted that even if it would have arrived at a different conclusion, the principle of judicial hierarchy and respect for constitutional declarations required it to abide by the prior decision.
Court Disposition
application dismissed/terminated
Orders
- The application dated 20 July 2018 is hereby terminated.
- No order as to costs.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO. 998 OF 2018
DR EDWIN GICHANGI CLAIMANT
v
KENYA CULTURAL CENTRE RESPONDENT
RULING
1. This ruling is in respect of an application dated 20 July 2018 by Dr Edwin Gichangi (Claimant) presented under Article 159(2)(d) of the Constitution and sections 3, 4, 5, 24, 28 and 30(2) & (5) of the Contempt of Court Act, No. 46 of 2016 and all other enabling provisions of law.
2. The Respondent responded to the application on 27 September 2018, and the Court took arguments on 8 October 2018 and reserved ruling to today.
3. On 9 November 2018, the High Court in Kenya Human Rights Commission v Attorney General & another(2018) eKLR, declared that sections 30 and 35 of the Contempt of Court Act were inconsistent with the Constitution, and further that the entire Contempt of Court Act was invalid for lack of public participation before enactment into law.
4. Considering that holding on unconstitutionality and invalidity, and the principle that it is not open to another Court at the same level/hierarchy to undeclare a declaration of invalidity/inconsistency with the Constitution, even if it would have come to a contrary opinion, and further considering that the application the subject of this ruling was anchored on the Contempt of Court Act as the substantive legislation in Kenya, this Court has come to the conclusion that the application herein must be terminated.
5. No order as to costs.
Delivered, dated and signed in Nairobi on this 7th day of December 2018.
Radido Stephen
Judge
Appearances
For applicant Majimbo A.G. & Co. Advocates
For Respondent Rachier & Amollo Advocates
Court Assistant Lindsey