Kenros v Kilifi County Government Public Service Board (Cause 012 of 2021) [2026] KEELRC 1800 (KLR) (24 June 2026) (Ruling)

Kenros v Kilifi County Government Public Service Board (Cause 012 of 2021) [2026] KEELRC 1800 (KLR) (24 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1800 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Malindi Cause 012 of 2021 K Ocharo, J June 24, 2026 Between Silas Ngundo Kenros Claimant and Kilifi County Government Public Service Board Respondent Ruling 1.By an Application dated 25th July, 2025, the Applicant sought the following orders;1.That this Application be certified urgent and be heard ex parte in the first instance.2.That this Honourable Court be pleased to cite the County Secretary, County Government of Kilifi, and the Chairman of the Board of Municipality of Malindi for being in contempt of the judgment of the Court and orders dated 18th December, 2024 and punish them as per sections of the Judicature Act for deliberately disobeying orders of this court.3.The Chairperson of the Kilifi County Public Service Board be barred from recruiting and interviewing any person for the position of Municipal Manager, Malindi Municipality, pending further orders from this court.4.That summons be issued against the County Secretary, County Government of Kilifi, and the Chairman of the Board of the Municipality of Malindi to appear before this court and show cause why they should not be committed to civil jail.5.That the costs of the application be provided for. 2.The Respondent opposed the application, contending that the same is unmerited. Following this Court’s directions, the application was canvassed by way of written submissions. Applicant’s case 3.In his supporting affidavit, the Applicant stated that on 18th December, 2024, this court adopted the decision of the Public Service Commission as a judgment of this court, following an application he made. 4.The Applicant further states that the court order was served upon the County Secretary, Mr. Martin Mwaro, the office of the County Attorney and the Chair of the Board of the Municipality of Malindi, on 17th January 2025. The service was acknowledged by all of them. 5.The Applicant further asserts that despite the service and several reminders, the Respondents have deliberately failed to comply with the order. 6.Instead of complying with the orders, the Kilifi County Public Service Board, in concert with the Respondents, went ahead to advertise for the position of Municipal Manager, Malindi Municipality, in a clandestine scheme to defeat the cause of justice and in utter disregard for the court order. 7.his court is clothed with the power to issue the orders sought in the instant application to uphold the rule of law and to compel adherence to the court order. Respondent’s case 8.The Respondent opposes the Notice of Motion through a Replying Affidavit sworn by Philip Kitsao Charo. He states that it is accurate that this court adopted the decision of the Public Service Commission, as its judgment on 18th December, 2024, wherein the Respondents were ordered, inter alia, to reinstate the Applicant to the position of Municipal Manager. 9.It is further stated that the Public Service, on 27th August 2025, declined the Respondent’s application requesting a review of its aforementioned decision. 10.In exercise of its powers under Section 62 of the County Government Act, the Respondent established the Malindi Municipality. The charter was issued on 19th March 2019, thereby conferring municipal status. At all material times, the Municipality was headed by a Town Manager, the Applicant, rather than a Municipal Manager, as envisaged by Section 29 of the Urban and Cities Act, which mandated that a City or Municipal Manager be competitively recruited. 11.As a result of the establishment of the Malindi Municipality, done in accordance with Sections 60, 61, and 62 of the County Government Act, the County Public Service Board, the Respondent herein, abolished the position of Town Manager within the establishment of the County with effect from 16th December, 2024. The Respondent further created the Office of Municipal Manager in line with the said Act and the County Government organisational structure and staff establishment for Municipalities. The Respondent also resolved to redesignate all Town Managers to the position of Deputy Directors, Job Group Q, to avoid disadvantaging them. 12.The Respondent advertised for the position of Municipal Manager at Malindi Municipality and competitively recruited the first Municipal Manager of Malindi Municipality in accordance with its resolution and to give effect to Section 29 of the Urban Areas and Cities Act. 13.It is asserted that the Respondent is not in contempt of the Court order. They complied with the order by redesignating the Applicant to the position of Deputy Director, Gender and Social Services, following the abolition of the position of Town Manager, which was the Applicant’s substantive position. 14.The Applicant accepted the redesignation and reported to work at the new station. He has benefited from salary payments and continues to do so. He was compensated equally for the unpaid salary during his suspension. 15.The Applicant’s application is afflicted by non-disclosure of material facts. Analysis and determination 16.I have considered the Notice of Motion dated 25th August 2025, the supporting affidavit, the Replying affidavit, and the submissions filed herein, and a single issue emerges for determination: whether the application is meritorious. 17.Contempt of court applications and the resulting punishments play an essential role in the justice system. They do more than just protect the interests of winning parties; they are also grounded in broader principles of public policy, adherence to the rule of law, and the upholding of the judiciary's authority and integrity. 18.Court orders are legally binding directives from a competent judicial authority, not mere suggestions or invitations for voluntary compliance. They must be obeyed by everyone to whom they are addressed unless they are lawfully modified, suspended, or revoked. Allowing disobedience without consequences would weaken the fundamental principles of the justice system. 19.The contempt law undoubtedly aims to uphold the rule of law by ensuring respect for judicial decisions. It underscores that no individual, regardless of their status, position, influence, or resources, is exempt from the law or beyond the reach of the judiciary. Society’s orderly resolution of disputes depends on obeying court orders, which prevents chaos and self-help methods. 20.Contempt proceedings also uphold the integrity and dignity of the judiciary. Public trust relies not only on courts’ ability to resolve disputes fairly but also on the enforceability of their decisions. If a court's orders can be disregarded without consequence, it risks losing relevance, thereby weakening justice. Consequently, the authority to punish contempt is essential for maintaining public confidence and ensuring the court's power remains effective. 21.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 imperilled, and courts would be rendered incapable of fulfilling their constitutional mandates. 22.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 a 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.” 23.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 willful. 24.Clarity is essential. A party cannot be found in contempt for not following an order if its terms are unclear, ambiguous, or open to various interpretations. The court's directive must be clearly articulated, leaving no uncertainty about what is mandated or forbidden. 25.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 discernible. The order was specific as to whom it was directed and what that person was required to do. 26.Secondly, it must be demonstrated that the alleged contemnor was aware of the order. Personal service of the order constitutes one method of establishing such awareness; however, it is not the sole method. Knowledge may be acquired through personal service, involvement in the proceedings, communication by legal counsel, or other means that establish familiarity with the order and its contents. The law does not permit a party who has knowledge of a court order to avoid responsibility solely because formal service was not effectuated. The Respondent’s Counsel’s submissions that the Applicant’s application should fail on the ground that the order was not personally served upon the persons named in the body of the application are not legally persuasive. 27.In any event, the Applicant’s assertion, as fortified by the return of service annexed to the application, that the order was served upon the persons named in the order and the application has not been challenged by the Respondents and them. There is no specific denial embodied in an affidavit sworn by the alleged contemnors disputing the service. 28.In Basil Criticos v Attorney General & 8 others [2012] eKLR, it 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 a 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 to 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.” 29.Considering the foregoing premises and the totality of the circumstances in this matter, I see no basis upon which I can conclude that the alleged contemnors were unaware of the order. 30.Third, and most importantly, evidence of deliberate and willful disobedience must be presented. Contempt is not constituted by mere non-compliance. The Court must be convincingly satisfied that the contemnor consciously and intentionally elected to disregard the authority of the court. When non-compliance results from misunderstanding, impossibility of performance, or circumstances beyond the party’s control, a determination of contempt may not be warranted. 31.The Respondents contended, and I deduce from the Applicant’s letter of appointment dated 8th September, 2019, that at all relevant times, the Applicant was occupying the position of Town Manager. During that period, the position of Municipal Manager was not established, and the Applicant did not serve in that capacity at any point. In my view, it would not be possible to reinstate the Applicant to a position for which he was not employed or was not serving at the time of separation. I agree with the Respondents. 32.Inarguably, the County Public Service possesses both the constitutional and statutory mandate to establish, reorganise and abolish offices within the county public service. That power is a legitimate instrument of public administration, intended to enable County Governments to respond to changing governance priorities, fiscal realities, operational demands, and evolving service delivery needs. Once that authority has been exercised in accordance with the law, the court must begin from the rebuttable presumption that the decision was taken lawfully, rationally, and in good faith. 33.The burden lies on the party impugning the decision to place before the court cogent evidence demonstrating that the abolition of office was actuated by bad faith, ulterior motives, discrimination, or victimisation, abuse of power, or otherwise undertaken in violation of the Constitution or the Applicable statutory framework. Absent such evidence, the abolition of the office remains a lawful exercise of managerial and administrative discretion entitled to judicial deference. 34.Undoubtedly, the Respondent, in the exercise of its constitutional mandate and statutory authority under the County Governments Act, abolished the office of the Town Manager following the establishment of the office of Municipal Manager under the Urban and Cities Act. Further, upon the abolition, the Applicant was redesignated to another office. I am unable to see, or agree with the Applicant, that the abolition of the office of the Town Manager was ill-intentioned, actuated, or designed to defeat the Court order. 35.In the upshot, I find that there was no wilful and deliberate disobedience of the court order, the subject of the instant application. Accordingly, the Applicant’s application is found to be without merit and is hereby dismissed. 36.Orders accordingly. READ, SIGNED AND DELIVERED THIS 24TH DAY OF JUNE 2026.OCHARO KEBIRA JUDGE