https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1684

Kenya Tea Growers Association & another v Attorney General & another (Petition 38 of 2014) [2026] KEELRC 1684 (KLR) (22 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1684 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Petition 38 of 2014 JK Gakeri, J June 22, 2026 Between Kenya Tea Growers Association 1st Petitioner Agricultural Employers Association 2nd Petitioner and The Hon. Attorney General 1st Respondent National Social Security Fund Board of Trustees 2nd Respondent Ruling 1.Before the court for determination is the Applicant’s Notice of Motion dated 11th March, 2026 filed under certificate of urgency seeking numerous orders including certification, joinder of the Applicant to the proceedings as an Interested Party, declaration that implementation of the National Social Security Fund Act, 2013 constituted wilful and deliberate disobedience of a lawful court order, prohibition of Respondents from further implementation of the impugned Act, mandatory injunction to compel the Respondents to reconfigure the NSSF on line payment and payroll processing to facilitate remittance in accord with the NSSF Act, 1965, publication of a public notice in two newspapers of national circulation to formally withdraw the notice dated 12th February 2026 at page 5 of the Daily Nation Newspaper and clearly stating that the NSSF Act 1965 was the applicable law, quashing the impugned notice, finding the 2nd to the 9th Respondents in wilful and deliberate disobedience of the judgment and order of the court dated 19th September 2022 and committal to civil jail for a period of six (6) months or such other period as the court may deem fit, the court to fashion a coercive order rather than punitive for the 2nd to the 9th Respondents to comply with court orders herein above, failing which the 2nd to the 9th Respondent be directed to present themselves to the Commissioner General of the Kenya Prison service for committal to prison, that if the 2nd to the 9th Respondents fail to surrender the Cabinet secretary for Interior and National Administration be directed to ensure apprehension and committal to prison to serve the sentence imposed by the court any other or further orders as may be necessary to protect the dignity and authority of the court and costs of the application be borne by the 2nd to the 9th Respondents. 2.The Application is based on the grounds outlined on its face and the Supporting Affidavit of the Applicant sworn on 11th March, 2026. 3.The affiant deponed that the court’s judgment on 19th September, 2022 declaring the NSSF Act, 2013 unconstitutional remains the legal position and the Respondent’s Notice of 12th February 2026 undermined the court’s authority and the court’s intervention was necessary by punishing the Respondents. 4.By Grounds of Opposition dated 10th April, 2026, the Respondents contended that the applicant had no standing was abusing the court process, joinder was discretionary had not demonstrated any identifiable stake or interest, the role of an Interested Party was limited and the court was functus officio. That the Respondents were not parties to the suit. The Respondents prayed for dismissal of the application. 5.On 15th April, 2026 the State Law office for the 1st – 9th Respondents filed a Notice of Preliminary Objection dated 10th April 2026 objecting to the application on the grounds of the court being functus officio, abuse of court process, want of jurisdiction, incompetence, applicant had no locus standi as he was notparty to the proceedings and was seeking reliefs before he was enjoined as a party, the application sought substantive reliefs and the Interested Party’s role was peripheral and could not introduce new issues. 7.In response, the Applicant filed Grounds of Opposition dated 17th April 2026 contending that the Respondent’s Notice of Preliminary Objection was incompetent vexatious, scandalous an abuse of court process and was instituted mala fides. 8.Strangely, the Applicant filed a rebuttal to the Respondents grounds of opposition to the application addressing the Preliminary Objection for a second time which the court ignored because the applicant had the opportunity to file submissions on the Preliminary Objection and was accorded 21 days to do so. 9.When the matter came up for mention on 21st April, 2026, the court issued directions on the filing and exchange of submissions for both the application and the Notice of Preliminary Objection. Applicant’s submissions 10.The applicant was accorded 21 days to file and serve submissions but failed to do so withing the prescribed duration but subsequently filed submissions on the Notice of Preliminary Objection. Respondent’s Submissions 11.As to whether the court is functus officio, reliance was placed on the sentiments of the court in Telkom Kenya Ltd v Ochanda (suing on his Behalf and on Behalf of 996 Former Employee of Telkom Kenya Ltd (2011) KECA 600 (KLR), to submit that since judgment was delivered on 19th September 2022 and the dispute proceeded to the Court of Appeal and the Supreme Court, the substantive issues including its effect and implementation were entwined with the proceedings pending before the Court of Appeal and the applicants request went beyond enforcement to determine substantive issues. 12.On whether the application constituted an abuse of the court process, counsel relied on the decision in Kinuthia (suing as administrator of the Estate of Mary Ng’endo Ngugi v Muiruri & 2 others (2026) KEELRC 1625 (KLR) on the definition of abuse of court process to urge that the applicant’s motion was an abuse of the court process as it sought coercive orders on issues connected to matters pending in court and there was an application before the Court of Appeal on stay of execution of the judgment of the Employment and Labour Relations Court pending ruling. 13.Counsel submitted that where a matter was within the appellate process parties ought to pursue their reliefs in that context as opposed to filling applications before the trial court framed as enforcement but seeking orders on substantive issues which could interfere with the appellate process. 14.That the applicant’s application is premature, improper and was an abuse of the court process. 15.As to whether the applicant had standing to seek substantive reliefs before joinder, counsel submitted that it was procedurally untenable and inconsistent with settled principles on the role of an Interested Party, that he or she does not attain the status of a substantive litigant by dint of the application for joinder and until it is granted, the applicant remained a stranger to the proceedings and could not seek substantive or coercive orders. 16.Reliance was placed on Munatetu & another v Republic; Kenya National Commission on Human Rights & 2 others (Interested Parties); Death Penalty Project (Intended Amicus Curiae (2016) KESC 12 (KLR) to submit that an Interested Party cannot seek to expand the scope of the proceedings or introduce reliefs that alter the character of the dispute in court or introduce new parties without leave of the court, leaving out the real owners of the proceedings. That the application went beyond mere participation and sought to enable the applicant assume the rule of a principal litigant. Counsel urged that the applicant had no locus standi. Counsel further submitted that the applicant was seeking a finding of contempt and committal to civil jail serious and far-reaching orders against the respondents and contempt proceedings were quasi-criminal in nature citing the decision in Maina & another v Maina & another (2016) KEHC 5501 (KLR) on the requirements of contempt of court, to submit that the application had not met the threshold for contempt of court orders to be made. 17.Finally, counsel submitted that the instant application was inconsistent with the respondents right to fair hearing as the orders sought related to persons who were not before the court on the substantive dispute. Counsel prayed for dismissal of the application with costs. Applicant (Proposed Interested Party’s) Submissions 18.According to the applicant the Respondents Notice of Preliminary Objection failed the test in Mukisa Biscuit Manufacturing Co. Ltd (1969) EA 696 on the ground that it necessitated an investigation of contested facts. 19.As to whether the court is functus officio the applicant contended that the court was not functus officio because the proceedings had not been concluded since the matter was remitted to the Court o f Appeal by the Supreme Court to determine the substantive merits of the judgment of the ELRC, which was pending. 20.That a court cannot be functus officio in enforcement of its own decisions and no stay was granted. 21.Reliance was placed on the sentiments of the Supreme Court in Odinga v Independent Electoral and Boundaries Commission & 3 others (2013) KESC 8 (KLR) as well as Telkom Kenya Ltd v John Ochanda (Suing on his won Behalf and on Behalf of 996 former Employee of Telkom Kenya (2014) eKLR to urge that the motion seeks enforcement of an existing judgment and address on-going contempt as opposed to relitigating the case on merits and the court had inherent jurisdiction to enforce its decrees and punish contempt of Court the Appeal notwithstanding as it was not an automatic stay of proceedings or enforcement of the judgment. 22.Reliance was also placed on Butt v Rent Restriction Tribunal (1982) KLR 417, Hadkinson v Hadkinson (1952) 2 ALLER 567 and Equity Bank Ltd v West Link Mbo Ltd 2013 KEA 32(8) (KLR). 23.Alsoe whether the application constitutes an abuse of court process, the applicant argued that it was not as the conduct of the parties and other facts had not been considered. 24.The applicant argued that the decision in Kinuthis v Muiruri (2026) KEELRC 1625 (KLR) involved a collateral attack of the judgment via a separate suit while the instant application was within the same file and sought enforcement and stay of execution had been granted. 25.On locus standi the applicant submitted that the gound had no merit as he was seeking joinder and the application can be heard together with the substantive prayers. 26.That the applicant had a direct personal and proximate interest as a contributor and had a duty to enforce the Constitution of Kenya under article 3(1) 22 and 258 (2). 27.Reliance was placed on the sentiments of the Supreme Court in Matemu v Trusted Society of Human Rights Alliance & 5 others (20140 KESC 6 (KLR). 28.The applicant submitted that the decision in Muratetu & another v Republic (Supra) related to introduction of a new issue. 29.As to whether contempt prayers were competent, the applicant relied on the decisions in Christine Wangari v Elizabeth Wanjiru Evans & 11 others (2014) KECA 840 (KLR) Law Society of Kenya & 3 others v Inspector General of Police & 4 others (2024) KEHC 10634 (KLR) and Republic v County Secretary Narok County Government & another (2023) KEHC 617 (KLR) to urge that the application meets the threshold for the grant of the orders of contempt. 30.As to whether the application violated the right to fair hearing the applicant submitted that the 2nd – 9th Respondents were parties to the suit and were served with the motion and will be heard. 31.The applicant urged the court to dismiss the Notice of Preliminary Objection. 32.The first issue for determination is whether the Respondents Notice of Preliminary Objection raises a competent Preliminary Objection. 33.As to what constitutes a Preliminary Objection, the rendition of Law JA and Sir Charles Newbold P. in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) E.A 696 suffices: Law JA stated:“So far as I am aware, a Preliminary Objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a Preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by a contract giving rise to the suit to refer the dispute to arbitration.”Sir Charles Newbold P. added:“a Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.” 34.In Attorney General & another v Githinji & another (2016) KECA 817 (KLR) the Court of Appeal summarised the test as follows:“The test to be applied in determining whether the appellant’s Preliminary Objection met the threshold or not is what Sir Charles Newbold set out above in the Mukisa case (Supra). This is first that the Preliminary Objection raises a pure point of law; Second, that there is demonstration that the facts pleaded by the other side are correct; and third that there is no fact that needs to be ascertained.” 35.Clearly, since the Respondents are challenging the court’s jurisdiction on the grounds that the court is functus officio, sub judice and locus standi among others, the court is satisfied the Notice of Preliminary Objection dated 10th April, 2026 meets the threshold in the Mukisa case (Supra). 36.On joinder, it is not in contest that the Applicant was not a party in Kenya Tea Growers Association & another v National Social Security Fund filed on 8th April 2015. 37.It is trite law that the court has power to strike out or add a party to a suit on application or suo motu. 38.Order 1 Rule 10(2) of the Civil Procedure Rules provides that:“The court may at any stage of the proceedings either upon or without the application of either party; and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out and the name of any person who ought to have been joined, whether as plaintiff or defendant or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit added.” 39.Similarly, in JMK v MWN & another (2015) KECA 524 (KLR) the Court of Appeal held:“We would however agree with the respondent that order I Rule 10(2) contemplates an application for amendment or joinder of parties where proceedings are still pending before the court Sarkars Code (Supra) quoting as authority decisions of Indian Courts on the provision, express the view that an application for joinder of parties can be filed only in pending proceedings.In the same vein, the Court of Appeal of Tanzania while considering the equivalent of Order I Rules, in Tana Gas Distributors Ltd v Said & others (2014) EA 448 stated that the power of the court to add a party to proceedings can be exercised at any stage of the proceedings; that a party can be joined even without applying: that the joinder may be done before or during the trial; that it can be done even after judgment where damages are yet to be assessed; that it is only when a suit or proceedings has been finally disposed of and there is nothing more to be done that the rule becomes inapplicable, and that a party can even be added at the appellate stage.” 40.Equally, in Rose Wakanyi Kaanja & 3 others v Geofrey Chege Kirundi & another: Everton Coal Coal Enterprise Ltd (Interested Party) (2020) KECA 616 (KLR), the Court of Appeal held:“However, there are exceptional circumstances that could justify a court to enjoin a party even after judgment has been delivered. One such exception is where a matter has been determined and adverse orders issued against a party who was neither given notice of the suit nor heard on the issue in dispute as was the case in this appeal.” 41.Finally, according to Nambuye J. (as she then was) in Kingori v Chege & 3 others (2002) 2 (KLR) 243;“…Necessary parties who ought to have been joined are parties who are necessary to the constitution of the suit without whom no decree at all can be passed. Therefore, in case of a defendant two conditions must be met:1.There must be a right to some relief against him on respect of the matter involved in the suit.2.His presence should be necessary in order to enable the court effectively and completely to adjudicate upon and settle all the question involved in the suit being one without whom no decree can be made effectively and one whose presence is necessary for complete and final decision on the questions involved in the proceedings.” 42.Similarly, in Trusted Society of Human Rights Alliance v Mumo Matemu & 5 others (2014) eKLR the Supreme Court stated:“Consequently, an Interested Party is one who has a stake in the proceedings, thought he or she was not party to the cause ab initio He or she is one who will be affected by the decision of the court when it is made either way. Such a person feels that his or her interest will not be well articulated unless he himself or herself appear in the proceedings and champions his or her cause…” 43.The foregoing pronouncements leave no doubt that an Interested Party must have stake or interest in the case and joins the suit to articulate the same. It is also discernible that joinder after judgment is by exception. This is because Order I Rule 10(2) of the Civil Procedure Rules envisions persons who ought to have been joined originally or whose presence before the court may be necessary for complete and effectual adjudication of all the questions arising from the suit. 44.The Applicant herein must have been aware of ELRC Petition No. 38 of 2014 but did not apply for joinder as an Interested Party before the trial court or any of the appellate courts and made no application for joinder even after delivery of the judgment of the Supreme Court on 21st February 2024. 45.Although, the Applicant was a member of the National Social Security Fund, he did not deem it necessary to articulate his interest before any court until now, which in the court’s view is too late in the day. Taking into account the relevant circumstances of this case, the court is not satisfied that the Applicant has not demonstrated a sustainable case why the court ought to exercise its discretionary favour towards him by enjoining him in a suit of this stage when he had the opportunity to do so before 21st February 2024 and thereafter and did not demonstrate that the petitioners were unable or unwilling to enforce the judgment. How I will now proceed to determine the Application would have fared if this court had exercised its discretion favourably and enjoined the Applicant as an Interested Party. 46.On the doctrine of functus officio, the court is guided by the sentiments of the Supreme Court of Kenya in Raila Odinga v IEBC & 3 others (2013) eKLR as follows:“A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded and the court functus when the judgment or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded the court cannot review or alter its decision; any change to its ruling on adjudication must be taken to a higher court if that right is available” 47.Similarly, the Telkom Kenya Ltd v Ochanda (suing on behalf of 996 Former Employees of Telkom Kenya Ltd (Supra) the Court of Appeal held:“The doctrine is not to be understood to bar any engagement by a court with a case that it has already decided or pronounced itself on. What if does bar is a merit – based decisional re-engagement with the case once final judgment has been entered and a decree thereon issued. There do therefore exist certain exceptions and these have been captured thus in Jersey Evening Post Ltd v Ai Thani (2002) JLR 542, at 550…” 48.In the court’s view, the Employment and Labour Relations Court delivered its judgment on 19th September 2022 and became functus officio. 49.Although the Application herein is styled as a contempt application, the scope of reliefs sought creates the impression that it is a blended application, seeking to enforce orders or decree which the applicant did not attach as well as other substantive orders such as declaration, prohibition, mandatory injunction, public notice and quashing of notice among others. 50.The foregoing lends credence to the respondent’s submission that the instant application went beyond an application for enforcement and seeks orders connected or related to the matter pending before the Court of Appeal and simultaneously intended to make the applicant assume the rule of the principal litigator in the suit, which is not consistent with the role of an Interested Party as held in Maruatetu & another v R (Supra). 51.Finally, the applicant’s application is grounded on contempt of court, that the 2nd -9th Respondents as guilty of contempt of court by willfully and deliberately disobeying lawful court orders. The principles that govern contempt of court are well settled. 52.Section 5 of the Judicature Act provides: -1.The High Court and the Court of Appeal shall have the same power to punish 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 exercise of the ordinary jurisdiction of the High Court.(See in this regard Justus Kariuki Mate & another v Hon. Martin Wambora & another Civil Appeal No. 24 of 2014 (Wambora case). 53.The need to punish persons who disobey court orders cannot be over-emphasized. It ensures that authority and dignity of courts is maintained and promotes the rule of law. 54.See in this regard Refrigeration and Kitchen Utensils Ltd v Eulabchand Pupaftal Shah & another Civil Application No. 39 of 1990 Hadkinson v Hadkinson (1952) ALLE R 567, Shimmers Plaza Ltd v National Bank of Kenya Ltd (2015) KECA 945 (KLR), Republic v Ahmad Abdulfathi Mohammed & another (2018) eKLR, Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya & another (2005) 1 KLR, Attorney General v Times Newspaper Ltd (1947) A.C. 273 AB & another v RB Civil Application No. 4 of 2016 eKLR, B V Attorney General (2004 1 KLR 431, Repubic v County Chief Officer Finance & Economic Planning Nairobi City County Ex Parte David Mugo Murangi (2018) eKLR, Central Bank of Kenya & another v Ratilal Ltd Automobiles Ltd & others Civil Application No. 247 of 2006 and Wildlife Lodges Ltd v County Council of Narok and another (2005) 2 E.A 344. 55.Concerning the elements of Civil contempt, the court is guided by the sentiments of Mativa J (as he then was) in Samuel M. N. Mweru & others v National Land Commission & 2 others (2020) KEHC 9233 (KLR) as follows: 56.It is an established principle of law that in order to succeed in Civil contempt, 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. 57.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. 58.Perhaps the most comprehensive of the elements of Civil contempt was stated by the learned authors of the book Contempt in New Zealand 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 of or proper notice of the terms of the order;c.the defendant had acted in breach of the terms of the order; andd.the defendant’s conduct was deliberate.” 59.The Court of Appeal cited the foregoing sentiments with approval in Wekesa & 2 others v Muniale (2025) KECA 679 (KLR). 60.Significantly, and as the Court of Appeal explained in Mutitika v Baharini Farm Ltd (1985) KECA 60 (KLR), the standard of proof in civil contempt is higher than proof on a balance of probabilities but below proof beyond reasonable doubt in criminal cases. This is because civil contempt is quasi criminal in nature and the applicant must discharge the heavy burden of proof. 61.Applying the foregoing principles to the facts of this case as presented by the applicant, the court is not persuaded that the applicant has discharged the burden of proof. 62.First, the applicant did not attach a copy of the order of decree of the court which the respondents disobeyed and in particular its terms. 63.Second the applicant tendered no evidence to demonstrate that the 2nd -9th respondents had knowledge of the terms of the court order or that the order was served upon them and when. 64.Third, the applicant provided no evidence to show that the 2nd -9th respondents breached the terms of the court order and did so willfully, deliberately or intentionally. 65.In the end it is the finding of this court that the applicant has failed to prove that the 2nd – 9th respondents are guilty of contempt of court. 66.From the foregoing, it is discernible that the applicant’s Notice of motion dated 11th March, 2026 is far dismissal and it is accordingly dismissed with no orders as to costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 22nd DAY OF JUNE, 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