https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2370

Githendu v Attorney General & 3 others (Petition E130 of 2025) [2026] KEELRC 2370 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KEELRC 2370 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Petition E130 of 2025 JK Gakeri, J July 31, 2026 Between Cpl Peter Mwangi Githendu Petitioner and Attorney General 1st Respondent National Police Service Commission 2nd Respondent The Inspector General Of The National Police Service 3rd Respondent The Deputy Inspector General, Kenya Police Service 4th Respondent Ruling 1.Before court for determination is the Applicant’s Notice of Motion dated 23rd March 2026 filed under Certificate of Urgency seeking orders that:1.Spent.2.The court do issue a Notice to show cause to the 3rd Respondent to appear in court on a date appointed by the court to show cause why he should not be committed to civil jail for disobedience of court orders issued on 30th June 2025, 25th September 2025 and 19th November 2025 staying the transfer of the Applicant from Ongata Rongai Police Station.3.The Respondents reinstate the Applicant immediately and declassify him as a deserter and station him for work.4.The Respondents reinstate the monthly salary remittances to the applicant and all accrued salary arrested.5.Costs of this application be met by the Respondents.6.Any further or additional or incidental order the court may deem appropriate, just and expedient to grant. 2.The motion was expressed under Articles 10, 159, 160, 73 and 245 of the Constitution of Kenya and Order 40 Rule 3 of the Civil Procedure Rules and based on the grounds set out on its face and the Supporting Affidavit of the Applicant sworn on 23rd March 2026 who deponed that he was working for gain at Ongata Rongai, that the court stayed his transfer vide orders issued on 30th June 2025 and served on 10th July 2025, amended on 24th September 2025 staying transfer from Ongata Rongai not Nairobi as earlier indicated. 3.That vide Ruling delivered on 19th November 2025 the court stayed the transfer from Ongata Rongai pending determination of the petition and the respondents disobeyed the orders and regarded the petitioner a deserter and stopped salary payments and the petitioner protested since it halted contributions to the Social Health Authority and loan repayment to Police Sacco and Co-operative Bank among others leading to listing with the Credit Reference Bureau as defaulter. Respondent’s Case 4.The court could not trace any response by the respondents to the application. Applicant’s Submissions 5.As to whether the Respondents were aware of the court order and disobeyed it, counsel for the petitioner submitted that there was a valid court order, the Respondents were aware of it and willfully disobeyed it citing the decisions in Shimmers Plaza Ltd v National Banak of Kenya Ltd (2015) eKLR and Econet Wireless Kenya Ltd v Minister for Information and Communication of Kenya & another (2005) eKLR, to urge that the Respondents had knowledge of the court order and the need to ensure that court orders are obeyed by all persons against whom they are made respectively. 6.Counsel urged that the applicant had demonstrated that the 3rd Respondent should be summoned to show cause why he should not be committed to civil jail for disobedience of a court order. 7.The Respondents did not file submissions for the instant application. 8.The singular issue for determination is whether the 3rd Respondent is guilty of disobeying court orders. 9.The law on an contempt of court is well settled. 10.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 shall be appealable as if it were a conviction and sentence made in the exercise of the ordinary criminal jurisdiction of the High Court. 11.In Shimmers Plaza Ltd v National Bank of Kenya Ltd (Supra) the Court of Appeal explained the law of contempt of court applicable in Kenya in the following words;“…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 the 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 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.”See also in this regard Christine Wangari Chege v Elizabeth Wanjiru Evans & 11 others Civil Application No. 233 of 2007, Chuck v Cremer (1) (1) Coop. Cott 342. 12It is trite that court orders are not made in vain and ought to be obeyed by all persons to whom they are directed. It is the only way the authority and dignity of court can be safe guarded and the rule of law maintained. The foregoing has been highlighted and underscored in numerous decisions. 13.In Mbaya v Kawira & another (2012) KECA 1032 (KLR) the Court of Appeal held:“The court has power to punish persons for willful breach of its orders. Without obedience to court orders there would be anarchy and lawlessness in society, and the court cannot countenance that.”See also Summers Plaza Ltd v National Bank of Kenya Ltd (Supra).Hadkinson v Hadkinson (1952) ALLER 507 Refrigeration & Kitchen Utensils Ltd Gulabchand Popatlal Shah & another, Civil Application No. 39 of 1990 and Mate & another v Wambora & another, Beijing Industrial Designing and Researching Institute v Lagoon Development Ltd (2015) KECA 365 (KLR) and Burchell v Burchell Case No. 364 of 2005. 14.For the court to make a finding that a person(s) is liable for contempt of court, the party alleging that contempt of court has taken place must discharge the burden of proof by demonstrating the elements of contempt of court as enunciated by courts.PARA 15.As regards the burden of proof, it is higher than in ordinary civil cases but lower than in criminal cases. It is thus between balance of probabilities and beyond reasonable doubt hence its description as intermediate. 16.In Mutitika v Baharini Farm Ltd (1985) KECA 60 (KLR) the Court of Appeal held:“We agree with Mr. Khaminwa’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 doubt. We envisage no difficulty in courts determining the suggested stand and of proof…” 17.The high standard of proof is required because contempt of court is quasi criminal and in the event of conviction, the persons may lose his or her right of personal liberty by way of a sentence to imprisonment. See Re Bramble Ltd (1970) 1 and 128. 18.The elements to be proved in contempt of court proceedings have been paraphrased and highlighted in many decisions. 19.In Samuel M. N. Mweru v National Land Commission (2026) KEHC 9233 (KLR) Mativo J (as he then was) stated:“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 willfulness 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.lawcom.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:a.The terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defendant:b.The defendant had knowledge or proper notice of the terms of the order;c.The defendant has acted in breach of the terms of the order; andd.The defendant’s conduct was deliberate.” 20.Applying these principles to the circumstances of the instant case, it is common ground that on 30th June 2025, the court granted the petitioner/applicant temporary orders staying his transfer from Nairobi which was incorrect since the petitioner was working in Ongata Rongai Kajiado County, and the error was rectified 24th September 2025 but uploaded on 28th October 2025 and by its ruling delivered on 19th November 2025 the court affirmed the stay orders pending the hearing and determination of the petition. 21.Effective 24th September 2025 the respondents were stopped from transferring the applicant from Ongata Rongai to any other place. The error on the Decree was corrected by the court in the presence of counsel for both parties as was the case on 19th November 2025 when the ruling was delivered. 22.The respondents were deemed aware of the court orders after rectification of the error. This is because the Applicant was not working in Nairobi as the previous order intimated but Ongata Rongai, thus making the court order ambiguous. 23.As to whether the respondents breached the court order, the facts deponed by the applicant lack sufficient details on how and when the respondents breached or violated the court orders. The applicant for instance did not attach the letter of transfer to the Supporting Affidavit or evidence as to when he was considered a deserter and when his salary was discontinued. However, the Kenya Police SACCO statement from 2nd January 2015 to 18th December 2025 revealed that the sum of Kshs.7,718.70 was credited to the applicant’s account except in the month of August 2025. 24.The court can only speculate that the Applicant’s salary was stopped in January 2026 but there was no evidence in support of the stoppage. The SACCO Statement for 2026 ought to show that no salary was credited, and bearing in mind that the application was filed in March 2026, the statements for January and February 2026 ought to have been filed. 25.A basic question the applicant failed to answer in his Supporting Affidavit as adverted to elsewhere in this ruling is who declared or deemed him a deserter and when and what did he do. 26.A copy of a lawyer’s letter dated 30th October 2025 on record is incomplete as it has no signature page. Similarly, the applicant did not attach a copy of his pay slip or disclose his salary. 27.For the foregoing reasons it is the finding of the court that the applicant has failed to prove to the required standard that the 3rd respondent is guilty of contempt of court. 28.In the upshot, the Notice of Motion dated 23rd March 2026 lacks merit and it is dismissed 29.Parties shall bear own costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 31ST JULY, 2026.DR. JACOB GAKERIJUDGEORDERIn 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 GAKERIJUDGE