https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2140

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **AT NAIROBI** **JR NO. E032 OF 2026** *(Before Hon. Justice Dr. Jacob Gakeri)* **MARY GITAO….....................................................1ST APPLICANT** **DAVID K. SIELE ……………………………………………2ND APPLICANT** **WINFRED N. MUSYOKI & HELLEN N. WACHALA** *(Administrators to the estate of Jimmy Musyoki Kilonzo***……………………………………………………….…3RDAPPLICANT** **PAUL M OSERO ……………………………………….……4TH APPLICANT** **VERSUS** **THE PERMANENT SECRETARY** **MINISTRY OF LABOUR………………………………..1ST RESPONDENT** **THE NOURABLE ATTORNEY GENERAL………....2ND RESPONDENT** **RULING** Before the court for determination is the Applicant’s Notice of Motion dated 18th March 2026 filed under Certificate of Urgency on 24th March 2026 seeking orders that: 1. Spent. 2. The principal Secretary Ministry of Labour be cited for contempt of court and committed to civil jail for a term of six (6) months and/or for such term as the court may determine for disobedience of the Honourable court’s order made on 17th February 2026 as far as it pertains to payment of claim in the sum of Kshs.11,997,758.00 to the Applicants. 3. The 1st Respondent be and condemned to pay costs of the Applicant. The Notice of Motion is expressed under section 5 (1) of the Judicature Act and Order 5 Rule 9 and 51 of the Civil Procedure Rules and is based on the grounds set out on its face and the Supporting Affidavit of Mary Muthoni Gitao sworn on 18th March 2026. The affiant deposes that judgment was rendered on 5th May 2017 and a Decree extracted on 18th October 2017. That one Jimmy Musyoki Kilonzo passed on 2021 and beneficiaries of the Estate applied for limited letters of grant *ad litem* and a grant issued to Winfred N. Musyoki and Hellen N. Mwachala, widow and daughter. The affiant deposes that Party and Party costs were taxed at Kshs.184,034.00 on 26th October 2023 and a Certificate of Costs issued as was the Certificate of Order for Costs Against the Government on 3rd November 2023 and the same was served upon the Attorney General on 24th November 2023 follow up made and a reminder on 12th September 2025 and to the National Treasury as well with no response. That service was further effected upon the 2nd Respondent on 30th September 2025 and the 1st Respondent on 28th October 2025. That an updated Certificate of Order Against the Government was served upon the 2nd Respondent and the National Treasury on 26th February 2026 and the 1st Respondent on 27th February 2026 and the cover later stated that in the event of default contempt of court proceedings would commence after seven (7) days. The affiant deposes the conduct of the 1st Respondent constituted contempt of court. The respondents on the other hand filed Grounds of Opposition dated 20th April 2026 urging that the Applicants were never personally served with the order of *mandamus* as service had not been deponed upon by the affiant and the contemnors could not be punished for contempt of court when there is no law describing the particulars of the offence and sentence and there was no prescribed sentence. That the Application is fatally defective as the applicants were not granted leave to institute contempt proceedings and the Principal Secretary National Treasury was not party to the instant suit. That the delay in payment had been occasioned by indolence of the applicants and non availment of necessary documents. That if funds are not available in the Ministry’s Budget the Ministry will seek approval to settle the decretal amount from the National Treasury. The Applicants filed a response to the 2nd Respondent’s Ground of opposition raising no new issues. On 15th April 2026, both counsels were present and the court accorded the Respondent 14 days to file and serve a response and the applicant had the right to reply with a mention on 11th May, 2026 when none of the parties was present a mention was scheduled for 21th May 2026 when both counsels were present and the court issued directions according the petitioners 7 days to file and serve response and parties were to file and exchanges submissions of not more than 5 pages 14 days a piece with a Mention/Ruling on 7th July 2026. **Applicant’s Submissions** On Service of the court order reliance was placed on **Republic v County Secretary Nairobi City County & another: Ndungu Ex parte Applicant (2023) 24118 (KLR)** to urge that the fact of service was attested to by the Replying Affidavit and the Certificate of Service was served upon the Respondent’s on various dates. Concerning lack of leave to institute the suit reliance was placed on the sentiments of the Court of Appeal in **Cecil Miller v Jackson Njeru & another (2017) KEHC 1499 (KLR)** to urge that leave was not necessary where committal proceedings related to a breach of a judgment, order or undertaking. On alleged irregularity of the certificate of costs, counsel submitted that the response was in paragraphs 21, 22, 23 and 24 of the Replying Affidavit. Counsel further submitted that the certificate of Order Against the Government was a creature of the court decree which had not been challenged or its terms varied or amended and the alleged irregularity had no basis The applicant herein seeks the citing for contempt of court of the Principal Secretary Ministry of Labour and Social Protection and committal to civil jail for disobedience of court orders. The singular issue for determination is whether the Principal Secretary, Ministry of Labour and Social Protection is guilty of contempt of court. The principles that govern contempt of court are well settled. Section 5 of the Judicature Act provides: 1. The High Court and the Court of Appeal shall have the same power to punish for contempt of court as is for the time being possessed by the High Court of Justice in England, and such power shall extend to upholding the authority and dignity of subordinate courts. 2. An order of the High Court made by way of punishment for contempt of court shall be appealable as if it were a conviction and sentence made in the exercise of the ordinary criminal jurisdiction of the High Court. Similarly, in **Shimmers Plaza Ltd v National Bank of Kenya Ltd (2015) KECA 945 (KLR)** the Court of Appeal stated: *“…this provision subjects the proceedings of contempt of court in Kenya to the current law governing the High Court of Justice in England. The law governing the justices in England previously was subject to common law and Order 52 of the Supreme Court Rules. However, England enacted the Contempt of Court Act of 1981 which supplements its common law contempt of court offences. The prevailing law of contempt in England is now found in the Contempt of Court Act of 1981 and Part 81 of the Procedure in the Civil Procedure (Amendment No.2) Rules, 2012 that replaced Order 52 of the Supreme Court Rules for Contempt proceedings in the Supreme Court of England. This court has interpreted and applied the said law locally in may important decisions…”* See in this regard **Christine Wangari Chege v Elizabeth Wanjiru Evans & 11 others** **Civil Application No. 233 of 2007.** The need to obey court orders and punish contempt of court has been emphasized in countless decisions. In **Matiangi, Cabinet Secretary Ministry of Interior and Co-ordination of National Government v Miguna & 4 others (2018) KECA 789 (KLR)**, the Court of Appeal expressed itself as follows: *“In deserving cases, this court has itself set its face firmly against granting contemnors audience until and unless then first purge their contempt and it shall continue to do so in such cases as evince a headstrong contumaciousness proceeding from a bold impunity, open defiance or cynical disregard for the authority of the court and the integrity of the judicial system. Such pernicious conduct cannot be countenanced and those hell-bent on it will find neither help nor refuge under a convenient and self-serving appeal to natural justice when their impudent conduct threatens the very foundation of the rule of law…”* See also **Justus Kariuki Mate & Jim G. Kauma v Martin Nyaga Wambora & Jim G Kauma (2014) KECA 590 (KLR), Hadkinson v Hadkinson (1951) ALLER 567, Refrigeration and Kitchen Utensils Ltd v Gulabachand Popatlal Shah & another, Civil Application No. 39 of 1990 and Mate and another v Wambora & another (2014) KECA 376 (KLR).** In determining whether the Principal Secretary Ministry of Labour and Social Protection disobeyed Court Orders, the court is required to determine whether the elements of contempt of court have been established. In this regard, the court is guided by the rendition of Mativo J (as he then) was in **Samuel M. N. Mweru & others v National Land Commission (2020) KEHC 9233 (KLR)** thus: *“It is an established principle of law that in order to succeed in Civil contempt proceedings, the applicant has to prove (i) the terms of the order (ii) knowledge of these terms by the Respondent (iii) Failure by the Respondent to comply with the terms of the order. Upon Proof of these requirements the presence of wilfulness and bad faith on the part of the Respondent would normally be inferred, but the Respondent could rebut this inference by contrary proof on a balance of probabilities. Perhaps the most comprehensive of the elements of civil contempt was stated by the learned authors of the book* ***Contempt in Modern New Zealand at ip 36.publications.law.com.govt.nz***who succinctly stated*:* *“There are essentially four elements that must be proved to make the case for civil contempt. The applicant must prove to the required standard (in civil contempt cases which is higher than civil cases) that:* 1. *The terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defendant;* 2. *The defendant had knowledge of or proper notice of the terms of the orders;* 3. *The defendant has acted in breach of the terms of the order; and* 4. *The defendant’s conduct was deliberate.”* As decipherable from the foregoing rendition, the standard of proof in civil contempt is higher than in civil cases. This is because civil contempt is *quasi criminal* and if convicted the contemnor may lose the constitutional right of personal liberty. In **Mutitika v Baharini Farm Ltd (1985) KECA (KLR),** the Court of Appeal held: *“We agree with Mr. Khaniwa’s submissions in this respect. In our view the standard of proof in contempt proceedings must be higher than proof on a balance of probabilities, almost but not exactly, beyond reasonable double. We envisage no difficulty in courts determining the suggested standard of proof...”* In the instant application, the Applicant contended that the 1st Respondent is in breach of the terms of an order of the court and ought to be cited for contempt of court. According to the Applicant, the elements of contempt have been established, but in their Grounds of Opposition, the Respondents contended that service of the order of *mandamus* was never effected on the Principal Secretary personally or that Principal Secretary was aware of the terms of the order. No doubt the terms of the order were clear and unambiguous. It is trite law that personal service is not essential where it can be evidentiary demonstrated that the alleged contemnor was aware of the terms of the orders. See **Basil Criticos Case.** The Applicant attached a total of four. Affidavits of Service sworn by one Mr. James, Muchiri Gachoki, the Certificate of Order Against the Government was served upon the Office of the Attorney General on 24th November. The year is not indicated but the Affidavit was sworn on 22nd November 2023, that the Certificate of Order and Costs Against the Government was served upon the Attorney General and the National Treasury on 23rd and a reminder on 16th September 2025. The final service was effected on the two offices on 26th February 2026. Puzzlingly, no service was effected on the Principal Secretary Ministry of Labour and Social Protection or the ministry generally. This is important because Section 21 of the Government Proceedings Act provides: 1. … 2. … 3. If the order provides for the payment of any money by way of damages or otherwise, or any cost 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:** The forwarding of a copy of the Certificate to the Attorney General is not mandatory under section 21(2) of the Act. Needless to belabour, neither the office of the Attorney General. **Applicant’s Submissions** On service of the court order reliance was placed on Republic v County Secretary Nairobi City County & another: Ndungu Exparte Applicant (2023) 24118 (KLR) to urge that the fact of service was attested to by the Replying Affidavit and the certificate of service was served upon the Respondent’s on various dates. Concerning lack of leave to institute the suit reliance was placed on the sentiments of the Court of Appeal in Cecil Miller v Jackson Njeru & another (2017) KEHC 1499 (KLR) to urge that leave was not necessary where committal proceedings related to a breach of a judgment, order or undertaking. On alleged irregularity of the certificate of costs counsel submitted that the response was in paragraphs 21, 22, 23 and 24 of the Replying Affidavit. Counsel further submitted that the certificate of Order Against Government was a creature of the court decree which had not been challenged or its terms varied or amended and the alleged irregularity had no basis. Flowing from the foregoing, the court is inclined to agree with the Respondents counsel’s contention that the terms of the order of the court are yet to be served upon the Principal Secretary Ministry of Labour and Social Protection for purposes of payment. The holder of the office is the Accounting Officer of the Ministry. Having failed to prove service of the Certificates on the alleged contemnor, the applicant’s ability to establish that the alleged conduct was deliberate, intentional or willful becomes exceedingly arduous. Applying the foregoing, principles to the facts of this case, it is clear that the Applicant has failed to demonstrate all the elements of civil contempt to the required standard of proof. In the courts view, the Applicant has failed to establish the *sine qua non* for the grant of the orders sought. Accordingly, the Applicant’s Notice of Motion dated 18th March 2026 is dismissed with no orders as to costs. **DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 7TH JULY, 2026.** **DR. JACOB GAKERI** **JUDGE** **ORDER** **In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st 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 has 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.** **DR. JACOB GAKERI** **JUDGE**