Gicheru v Kenya Utalii College & another (Petition E160 of 2026) [2026] KEELRC 2401 (KLR) (14 August 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **PETITION NO. E160 OF 2026** **ROSALIND GICHERU PETITIONER** *VERSUS* **KENYA UTALII COLLEGE 1ST RESPONDENT** **MR. MARK R. OGENDI, PRINCIPAL AND CHIEF EXECUTIVE** **OFFICER (CEO), KENYA UTALII COLLEGE 2ND RESPONDENT** **RULING NO. 2** The petitioner filed an application dated 29 June 2026 under the provisions of articles 22, 23, 159 and 165 of the constitution, rules 3, 4, 23, and 24 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules and seeking leave to commence contempt of court proceedings against the 2nd respondent Mark Ogendi for willful disobedience of the conservatory orders issued by the court on 8 June 2026 ad extended on 24 June 2026. The petitioner is also seeking orders that, upon the granting of leave, the 2nd respondent be cited for contempt and summoned to attend court and show cause why he should not be punished. Further, the 2nd respondent be restrained from assigning, delegating, transferring, appointing or causing any persons to perform the duties and functions of the acting director of the 1st respondent unless the contempt is purged, The petitioner filed an affidavit in support of the application on the grounds that, on 8 June 2026, the court issued conservatory orders directing the petitioner to continue serving as acting director of the 1st respondent pending the hearing and determination of the petition. The orders were extended on 24 June 2024. The 2nd respondent had full knowledge of the court orders but deliberately frustrated and obstructed the petitioner, making it impossible for the petitioner to resume and perform the duties of acting director. The petitioner avers that the 2nd respondent continued to assign her duties to Mr. Kamau in direct violation of the court orders. In a deliberate attempt to circumvent and negate the court orders, the 2nd respondent assigned the petitioner's duties and responsibilities to Elizabeth Komora on 25 and 28 June 2026, while Kamau was allegedly away. The 2nd respondent continued to sign documents and issue directions relating to the office of the acting director contrary to the court orders. Such conduct was contrary to the court's express orders allowing the petitioner to retain the office of acting director. In reply, the 2nd respondent filed his Replying Affidavit and avers that the petitioner is no longer the acting director of the 1st respondent as alleged. From 9 May 2026, before filing the suit herein, she had ceased being the acting director. In terms of the letter dated 22 April 2026, the petitioner transitioned from the office of acting director and James Kamau accepted the appointment on 4 May 2026. At the time the petition was filed, the petitioner was aware of these facts but failed to disclose them to the court, thereby obtaining orders without full disclosure of the material. Ogendi avers that, notwithstanding the pre-existing status quo, in strict compliance with the court orders issued on 8 June, the human resource department issued a formal letter to the petitioner on 15 June 2026, confirming the petitioner's compliance and the maintenance of the acting director role pending the hearing of the application scheduled for 24 June 2026. On 3 July 2026, the court dismissed the application dated 13 May 2026. The petitioner issued an internal memo addressed to the deponent, the acting director, and admitted that she was on annual leave from 6 July to 26 August 2026. She confirmed that she cleared all pending issues on her desk and would remain available to the respondents when needed. The internal memo dated 3 July 2026 confirms that the petitioner had access to the acting director's office until the court dismissed her application. She did not vacate the office until then; hence, no contempt of court as alleged. The application herein should be dismissed for lack of merit. The petitioner filed her Further Affidavit and averred that the assertions by the 2nd respondent are incorrect, as the 2nd respondent's respondents are in disobedience of court orders. James Kamau has been acting as the 1st respondent's director in direct disobedience of the court orders. James Kamau has since been making various communications from 25 to 28 June 2026 as the acting director. He purported to appoint Elizabeth Komora to oversee and handle matters during his absence from office. Such facts are not contested, and there is evidence to that effect. Such is an affront to the court orders subsisting then and in contempt of court. Both parties attended and made oral submissions on the application. These are analysed and addressed in the findings. **Determination** On 14 May 2026, the court addressed the petitioner’s application dated 13 May 2026 and directed the parties to attend a hearing on 8 June 2026. On 8 June, 2026, the parties were present; the court allowed the respondent time to file a reply to the application and further directed that, in the interim, the parties maintain the status quo and the petitioner be the acting director of the 1st respondent, pending the hearing of the application on 24 June 2026. Parties attended, and the interim orders were extended. Is there contempt of court? Courts punish contempt of court to safeguard the rule of law, which is fundamental to the administration of justice. It has nothing to do with the integrity of the judiciary or the court or even the personal ego of the presiding judge, as held in **Teachers Service Commission v Kenya National Union of Teachers & 2 others [2013] KEELRC 656 (KLR).** In **Ibrahim Haji Issak v Kenya Meat Commission & another [2013] KEELRC 106 (KLR)**, the court defined contempt of court to include Conduct that defies the authority or dignity of a court. Because such conduct interferes with the administration of justice, it is usually punishable by a fine or imprisonment. Contempt of court proceedings and applications are delicate and criminal in nature and would impose criminal penalties if a conviction ensued. The court must therefore take great precaution to ensure only deserving cases take this route. On 30 June 2026, the court delivered a ruling on the pending application for interim orders, now said to have been deliberately ignored by the respondents. The issue largely being the petitioner's acting role as the 1st respondent's director. The application was dismissed on the grounds that, legally, an acting role in the public service is regulated. The court held that: *The orders sought by the petitioner to be reinstated to the position of acting director, Utalii College, to an acting position held from 1 October 2023 to 9 May 2026 went against the legal maximum. She cannot enjoy orders based on an illegality. Issuing a conservatory order allowing the petitioner to revert to the acting role would entrench such illegality. Allowing the petitioner to hold an acting position for more than 6 months was a gross error on the part of the respondent.* Indeed, as the respondents assert, the acting role ceased on 9 May 2026. The petitioner moved the court on 13 May 2026. The basis and foundation of the interim orders were premised on these facts. Holding a position beyond the legal threshold cannot invite a lawful sanction in alleged contempt of court. Such would negate the findings in the subject application and findings thereof. Without delving into the merits of the main suit, it would be imperative for the court to hear the main claim on its merits. It is necessary to address the main cause of action. **Application dated 29 June 2026 is declined. No orders on costs.** **Delivered in open court this 14th day of August 2026** **M. MBARŨ** **JUDGE** **In the presence of:** Court Assistant: Kemboi ……………………………………………… and …………………………………..………