https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1556

Mwakamba v Taita Taveta County Public Service Board (Miscellaneous Application 048 of 2023) [2026] KEELRC 1556 (KLR) (28 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1556 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Mombasa Miscellaneous Application 048 of 2023 K Ocharo, J May 28, 2026 Between Elipida Mwakamba Applicant and Taita Taveta County Public Service Board Respondent Ruling 1.In the Application dated 30th June, 2025, the Applicant prayed for the orders;1.That this Application be certified urgent and be heard ex parte in the first instance.2.That this Honourable Court do find the members constituting the Respondents to be in contempt of Court for failing to reinstate the Applicant into the County Public Service to a position of job group S and pay 12 months' equivalent of salary as ordered by the court on the 26th September 2024.3.That the Respondent be committed to the Civil Jail for a period of not more than six months for the said Contempt of Court.4.That the costs of this Application be paid by the Respondent. Applicant’s case 2.In her supporting affidavit, the Applicant, Elipida Mwakamba, states that she previously filed a Notice of Motion dated 2nd October 2023 seeking the adoption and enforcement of the Public Service Commission decision dated 19th September 2022. According to her, the PSC decision directed her reinstatement to the Taita Taveta County Public Service and the payment of compensation equivalent to 12 months’ salary for unprocedural deployment. 3.The Applicant states that on 26th September 2024, this Court, in the presence of the Respondent’s advocates, ordered the Respondent to reinstate her to the County public service in Job Group S, or to a position commensurate with her qualifications, and to pay her compensation equivalent to 12 months’ salary together with costs of the application. 4.She further states that her advocates obtained the decree arising from the ruling and served it, together with the court orders, on the Respondent and its advocates on several occasions, namely 22nd October 2024, 6th November 2024, 22nd November 2024 and 5th June 2025. 5.The Applicant also states that her advocates served the individual members of the Taita Taveta County Public Service Board through WhatsApp using their personal phone numbers. She identifies the members allegedly served as Alfred Mlolwa, Sabina Maghanga, Christopher Pongah, Davis Mshighati, Velentinah Kirigha, Samuel Mutie and Mathew Mfuko Mwamburi. 6.Her position is that despite service and confirmed receipt of the decree and orders, the Respondent and its members have willfully, knowingly and contemptuously failed, refused and ignored to comply with the orders of the Court. 7.The Applicant further avers that the Court’s decision has neither been stayed nor overturned by the Court of Appeal, and that the Respondent’s continued disobedience constitutes contempt of court. Respondent’s case 8.The Respondent opposes the Notice of Motion dated 30th June 2025, stating that it is incompetent, misconceived and bad in law, as it allegedly contravenes the mandatory legal requirements governing contempt proceedings. 9.The Respondent asserts that the Applicant has not satisfied the legal criteria for contempt, particularly due to the failure to demonstrate personal knowledge of the orders by the Respondent or deliberate disobedience thereof. 10.The Respondent further argues that the order alleged to have been disobeyed was not personally served on the Respondent, and that its existence or terms were not brought to the Respondent’s personal knowledge as required by law. It relies on the principle in Republic v Ahmad Abolfathi Mohammed & Another [2018] eKLR, and states that contempt proceedings are quasi-criminal in nature and require proof on the balance of probabilities, though not beyond reasonable doubt. According to the Respondent, the Applicant has failed to discharge that burden. 11.The Respondent also contends that the application is an abuse of the court process, intended to intimidate and scandalise the Respondent. It argues that the order relied upon lacks the clarity and precision required for enforcement by contempt, as it does not expressly set out timelines or modalities for reinstatement. 12.It further states that any alleged failure to reinstate the Applicant was not deliberate but was due to administrative, logistical and procedural constraints within the Respondent’s operations, which are being addressed in good faith. 13.The Respondent’s position is that reinstatement is discretionary in nature and its implementation may depend on factors beyond its unilateral control, including budgetary approvals, structural reorganisation, and availability of the Applicant’s previous position. 14.It maintains that it has acted in good faith and with respect for the court's authority, and that the Applicant has not demonstrated any willful disobedience or any intention on the Respondent's part to undermine the court. It therefore urges the court to dismiss the application, on the grounds that the Applicant seeks to criminalise administrative delays and unfairly vilify the Respondent. Applicant’s submissions 15.Counsel for the Applicant submits that the orders in issue were valid orders of this Court that were made in the presence of Counsel for the Respondent. The orders in his view are clear and unequivocal. They were made by a Court of competent Jurisdiction. 16.Regarding knowledge and service, the Applicant submits that the Respondent had both actual and constructive knowledge of the orders, as its advocate was present when they were issued. Reliance is placed on Shimmers Plaza Ltd v National Bank of Kenya Ltd (2015) KECA 945 (KLR). 17.Counsel further submits that the orders were served on the Respondent’s advocates on 22nd October 2024, on the Respondent by email on 22nd November 2024, physically on 5th June 2025, and on individual board members via WhatsApp. 18.On willful disobedience, Counsel submits that, despite knowledge of the orders and the absence of any stay, the Respondent has failed to comply. The Applicant argues that the Respondent neither appealed against the orders nor sought a stay or variation, and that willfulness should therefore be inferred. Reliance is placed on Republic v Nairobi Metropolitan Services (NMS) & 5 Others; Kaka Travellers Cooperative Savings & Credit Society Ltd (Ex parte applicant); Omurwa (contemnor); Metro Trans EA Ltd (Interested Party) [2023] KEHC 1384 (KLR). 19.The Applicant also challenges the Respondent’s alleged defence of administrative, logistical, and procedural constraints. It is submitted that such constraints have not been particularised and cannot override a court order. 20.The Applicant argues that more than a year has passed since the order was made and that, even after the contempt application was filed, the Respondent have not purged the alleged contempt. 21.The Applicant further submits that the Respondent cannot argue that reinstatement is discretionary at the enforcement stage, as the time to challenge the order has long expired. 22.Citing Central Bank of Kenya & Another v Ratilal Automobiles Ltd & Others Civil Application No. Nai 247 of 2006, as cited in Republic v The County Government of Kitui & Another [2022] KEHC 930 (KLR), Counsel urges the court to be persuaded by the fundamental principle therein that the rule of law require that court orders must be obeyed, and it is not open to any person or persons to choose whether or not to comply with or to ignore such orders as directed him or them by a court of law. 23.Regarding punishment for contempt, the Applicant cites Wildlife Lodges Ltd v County Council of Narok & Another (2005) EA 344 (HCK). The Applicant contends that the Respondent’s persistent disobedience diminishes the dignity and authority of the court, and respectfully urges the court to grant the application as sought. Analysis and determination 24.I have considered the Notice of Motion dated 30th June 2025, the supporting affidavit, the Respondent’s grounds of opposition and submissions. The application seeks to cite the Respondent and the members of the Taita Taveta County Public Service Board for contempt of court for alleged failure to comply with the orders of this Court dated 26th September 2024. 25.The orders required, among other things, that the Applicant be reinstated to the County public service in Job Group S or in a position commensurate with her qualifications, and that she be paid compensation equivalent to 12 months’ salary. 26.Applications for contempt of court and the consequential punishment of those found culpable serve a critical and indispensable function in the administration of justice. They are not merely intended to vindicate the interests of a successful litigant; rather, they are grounded in the broader considerations of public policy, the rule of law, and preservation of the authority and institutional integrity of the judiciary. 27.Court orders are not issued as suggestions or invitations for voluntary compliance. They are binding commands of a competent judicial authority and must be obeyed by all persons to whom they are directed unless and until they are lawfully varied, stayed or set aside. Permitting disobedience with impunity would undermine the very foundation on which the justice system rests. 28.The law of contempt, no doubt, exists to safeguard the rule of law by ensuring that judicial pronouncements are respected and obeyed. It affirms the principle that no person, regardless of status, office, influence, or resources, is above the law or beyond the reach of judicial authority. Compliance with court orders is the price that civilised society pays for the orderly resolution of disputes through legal processes rather than through self-help or anarchy. 29.Further, contempt proceedings protect the institutional integrity and dignity of the judiciary. Public confidence in the courts depends not only on the courts’ ability to determine disputes fairly, but also on the effectiveness and enforceability of their decisions. A court whose orders can be ignored with impunity risks becoming irrelevant, and the administration of justice correspondingly weakened. The power to punish for contempt, therefore, serves as a necessary mechanism for preserving public confidence in the judicial system and ensuring that the court's authority remains real and effective. 30.Ultimately, punishment for contempt is not an end in itself. It is a means of upholding the supremacy of the law, protecting the administration of justice, maintaining respect for judicial authority, and assuring the public that court orders are meaningful commands that must be obeyed. Without an effective contempt jurisdiction, the rule of law would be seriously imperiled, and courts would be rendered incapable of performing their constitutional mandates. 31.The Supreme Court of Kenya in Republic v Ahmad Abolfathi Mohammed & another [2018] eKLR affirmed that the standard of proof in contempt proceedings is higher than proof on a balance of probabilities, though not as high as proof beyond a reasonable doubt.“It is, therefore, evident that not only do contemnors demean the integrity and authority of Courts, but they also deride the rule of law. This must not be allowed to happen. We are also conscious of the standard of proof in contempt matters. The standard of proof in cases of contempt of Court is well established. In the case of Mutitika v. Baharini Farm Limited [1985] KLR 229, 234, the Court of Appeal held that:In our view, the standard of proof in contempt proceedings must be higher than proof on the balance of probabilities, almost but not exactly, beyond reasonable doubt...The standard of proof beyond reasonable doubt ought to be left where it belongs, to wit, in criminal cases. It is not safe to extend it to an offence which can be said to be quasi-criminal in nature.” 32.For an application for contempt to succeed, the applicant must establish to the requisite standard three essential elements: first, that the order alleged to have been disobeyed was clear, precise, and unambiguous; second, that the alleged contemnor had knowledge of the order; and third, that the disobedience was deliberate and wilful. 33.The requirement for clarity is fundamental. A party cannot be held in contempt for failing to comply with an order whose terms are uncertain, vague, or open to multiple interpretations. The command of the court must be expressed in a language that leaves no doubt as to what is required or prohibited. 34.I have carefully considered the order in issue, I have no doubt that it was clear, precise, and unambiguous. The obligations imposed by the order were clearly discernable. The contemnors’ contention that it was not, is unfounded. In any event, this Court has not lost sight of the fact that this matter was adjourned severally at their instance to allow them get time to comply. They did not at any time assert that the order was not clear to them. If the contemnors considered the order incapable of implementation, vague, impracticable, or requiring clarification, the proper course was to move the Court for clarification, review, or variation. They did not do so. 35.Second it must be shown that the alleged contemnor had knowledge of the order. Personal service of the order is one means of proving knowledge, but it is not the only one. Such knowledge may be acquired through personal service, participation in the proceedings, communication by counsel, or any other means that establishes awareness of the order and contents. The law does not permit a party who is aware of a court order to evade responsibility merely because formal service was not effected. 36.The Applicant contended that the order was made in the presence of counsel for the Respondent, and that the extracted decree and order were later served upon the Respondent and its advocates on several occasions, including 22nd October 2024, 6th November 2024, 22nd November 2024 and 5th June 2025. This was not rebutted in any way by the alleged contemnors. 37.The Applicant further asserted that the individual members of the Respondent Board were served through WhatsApp on their personal numbers. Another, fact that has not been sufficiently challenged. 38.In Basil Criticos v Attorney General & 8 others [2012] eKLR is that knowledge of a court order supersedes personal service where a party is shown to have had knowledge of the order.“However, the law has changed, and as it stands today, knowledge supersedes personal service for good reason. This has recently been held in Kenya Tea Growers Association vs Francis Atwoli & 5 Others, Petition No.64 of 2010 where I opined as follows;“In the case before me, I am more than satisfied that even at the higher level of beyond reasonable doubt, when an individual has been served with and/or has knowledge of a court order but not only ignores it but in fact incites others to do the same, the threshold for contempt has been met. Francis Atwoli in fact went further to arrogate himself the decision to determine when the strike should end despite the fact that the Court Order had stopped it. He went further to interpret it as made without jurisdiction and that only the “Workers Court”, (the Industrial Court) had jurisdiction to determine the matter. He did not do so once but on a number of occasions as he flew by helicopter from place to place on 18th October 2012. His contempt was obvious, and his conduct and words can attract no other finding.” 39.Considering the foregoing premises and the totality of the circumstances of this matter, including the adjournments that this Court gave to the Respondent to give time for compliance, I see no basis upon which I can conclude that the alleged contemnors were not aware of the order. 40.Third, and most importantly, there must be proof of deliberate and wilful disobedience. Contempt is not established by mere non-compliance. The Court must be satisfied that the contemnor consciously and intentionally chose to disregard the authority of the court. Where non- compliance arises from misunderstanding, impossibility of performance, or circumstances beyond the party’s control, a finding of contempt may not be justified. 41.The Respondent/alleged contemnors state that any non-compliance was not deliberate but was due to administrative, logistical and procedural constraints, including budgetary approvals, structural reorganisation and non-availability of the Applicant’s previous position. However, these alleged constraints are generally asserted and without supporting evidence. One would wonder why even the easiest part of the order, payment of compensation, would not be effected. I am left with no choice but conclude that the failure to comply has been deliberate and wilful. 42.In the upshot, I find the Applicant’s application merited. The members of the Taita Taveta County Public Service Board are all hereby found guilty of contempt of a lawful court order. They shall appear before this Court on 24th June 2026, for mitigation and sentencing. 43.Orders accordingly. READ, SIGNED AND DELIVERED THIS 28TH DAY OF MAY 2026.OCHARO KEBIRAJUDGE