https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1457

Kisii University Council v Kenya Union of Domestic Workers, Hotels, Educational Institutions and Hospital Workers (KUDHEIHA) (Civil Appeal E114 of 2021) [2026] KECA 1457 (KLR) (17 July 2026) (Judgment) Neutral citation: [2026] KECA 1457 (KLR) Republic of Kenya In the Court of Appeal at Nakuru Civil Appeal E114 of 2021 JM Mativo, AI Hassan & BM Kairaria, JJA July 17, 2026 Between Kisii University Council Appellant and Kenya Union of Domestic Workers, Hotels, Educational Institutions and Hospital Workers (KUDHEIHA) Respondent (An appeal from the ruling of the Employment and Labour Relations Court at Nakuru (Hellen Wasilwa, J.) dated 16th November 2021 in ELRC Case No. E013 of 2020) Judgment 1.By this appeal, Kisii University Council [the appellant] seeks to set aside that part of the ruling of the Employment and Labour Relations Court delivered by the Hon. Wasilwa J on 16th November, 2021 in Nakuru ELRC No. E013 of 2021, which held the appellant in contempt of the court order dated 28th October, 2020 and ordered the Vice Chancellor Kisii University to attend court for sentencing. The appellant also seeks that the respondent’s application dated 6th May, 2021 be dismissed with costs as well as costs of this appeal. 2.The appeal is predicated on the six [6] grounds of appeal set out in the memorandum of appeal dated 14th December,2021 and supported by the appellant’s written submissions dated 22nd May, 2026 together with the oral highlights by Mr. Nyamurongi Advocate for the appellant during the virtual hearing on 25th May, 2026. 3.Briefly the appellant faults the learned judge for:a.failing to consider whether the evidence adduced by the respondent proved the alleged acts of contempt in the application dated 6th May, 2021 to the required degree of proof;b.failing to consider and hold that the appellant could not have committed contempt of court with respect to the court order given on 28th October,2020 because the said order was directed at a notice to employees dated 1st October,2021 which was a sequel to the notice of redundancy dated 30th September, 2020;c.failing to consider and hold that the notice of redundancy dated 30th September,2020 was not challenged by the respondent and became effective on 31st October 2020;d.wrongly not construing the redundancy notice dated 30th September,2020 as the effective statutory notice in terms of Section 40[1] [a] of the Employment Act and equating it with the appellant’s notice to individual employees dated 1st October 2020;e.failing to consider and appropriately apply legal precedents submitted to her on the interpretation of Section 40[1] [a] of the Employment Act; and lastlyf.that the impugned ruling constitutes a miscarriage of justice. 4.The respondent did not file any response to the appeal and neither did it appear in Court during the hearing on 25th May, 2026 though served with the hearing notice. We heard the appeal in the absence of the respondent and without any submissions in opposition. Though the Respondent did not file submissions and was not represented at the hearing, we shall nevertheless proceed to consider and determine the appeal on its merits. 5.The background facts leading to the appeal are straightforward and can be briefly stated. The appellant is the governing body of Kisii University a Public University registered under the Universities Act No. 42 of 2012, while respondent is a registered workers Union registered under the Labour Relations Act No. 14 of 2007. At the material time when the dispute triggering the institution of the claim before the ELRC ,the parties operated on the basis of a duly signed Recognition Agreement and a Registered Collective Bargaining Agreement and concluded another Collective Bargaining Agreement. In the year 2020 the appellant decided to downsize its work force due to cash flow challenges exacerbated by the effects of Covid-19 pandemic. The appellant issued and served a redundancy notice under Section 40[1] [a] dated 30th September, 2020 on the respondent as the intended redundancy affected the respondent’s members. The respondent acknowledged receipt of the redundancy notice by letter dated 5th October, 2020 and asked the Appellant to withdraw the notice. The appellant did not withdraw the notice dated 30th September, 2020. In addition to the redundancy notice sent to the workers union the appellant sent individual letters dated 1st October, 2020 notifying them of the impending redundancy. Thereafter the appellant engaged in discussions and negotiations which did not yield the desired settlement. 6.The respondent as Claimant then filed a claim at the Employment and Labour Relations Court by way of a memorandum of claim dated 23rd October,2020 on behalf of 226 named members at Nakuru ELRC Cause No. E013 of 2020 seeking prayers as follows:15.A declaration that the respondent unfairly terminated the grievants’ employment.16.The respondent shall pay the grievants:a.Notice as per the collective bargaining agreement.b.Leave days not taken.c.Unpaid salary arrears and other benefits.d.Leave travelling allowance.e.Severance pay as per the C.B.A.f.Passage and baggage allowance.g.Overtime.h.Service gratuity.17.12 Months’ salary compensation for unfair termination.18.That the respondent to pay the costs and interest at court rates.19.That the court grant any other orders it deems just.20.That the above computations be filed in court after the conciliation between the Claimant and the respondent as requested in the notice of motion dated 23rd October, 2020. 7.Simultaneously with the Memorandum of claim the respondent filed a Notice of motion application dated 23rd October, 2020 under a certificate of urgency seeking a rapt of orders. Of particular relevance to this appeal is prayer 2 which curiously reads:“That there be an order of execution restraining the respondent from implementing letters dated 1st October ,2020 issued to the grievant’s members of the claimant herein pending hearing and determination of this suit.’’ 8.The application was placed before the Hon. Monica Mbaru J on 28th October, 2020 who certified it urgent and ordered that it be heard on priority basis. In addition the judge made several orders as captured in the extracted order issued on 29th October, 2020. Where material Par. b of the extracted order reads:“That in the interim and to allow for service upon the respondent the letter dated 1st October, 2020 is hereby stayed and shall not be implemented.” 9.It is that order that the respondent accused the appellant of violating in the application dated 6th May, 2021 and sought to have the Vice Chancellor Kisii University committed to civil jail for six months for disobeying a court order issued by a court of competent jurisdiction. The application was premised on the following grounds supported by the affidavit of Albert Njeru its Secretary General. In sum those grounds are:a.The respondent obtained orders from this court on the 28th October2020 to the effect that the appellant was restrained from victimizing and terminating the employment of the grievants on account of redundancy till the application is heard and determined;b.The said orders were served upon the appellant on 30th October, 2020 and a return of service filed in court;c.The appellant in total disregard of the court order which has not been varied or vacated proceeded to victimize some of the employees by withholding their salaries and even terminated the services of some of them;d.The actions of the respondent have exposed the claimant’s members to serious job losses and possibility of withdrawing their membership. 10.In response ,the appellant filed a replying affidavit sworn by Seth Ayunga Onguti on 24th May, 2021 in which he averred that the University had not committed any act of contempt of court, that the court order was directed at the letter dated 1st October, 2020, and not to the redundancy notice dated 30th September, 2020, which the respondent acknowledged receipt of the notice in its letter of 5th October, 2020 but did not contest it in court, the redundancy notice dated 30th September, 2020 was not challenged and automatically came into effect on 30th October, 2020. 11.The appellant further contended that the claimant did not discharge the evidentiary burden of proof that the University was indeed in contempt of court and the grounds upon which the application for contempt had been made such as victimization of employees, stopped salaries and termination of employment of some of the employees had not been proved to the required standard by way of actual evidence. 12.In the ruling dated 16th November, 2021 the Hon. H. Wasilwa J acknowledged that the redundancy notice dated 30th September, 2020 was served upon the respondent Union and not on its members in accordance with the standard procedure as per Section 40 of the Employment Act. Notwithstanding that acknowledgement the learned judge blushed aside the appellant‘s argument that the 28th October, 2020 exparte order [Mbaru J] did not affect the notice of 30th September, 2020 as far-fetched and found that the appellant was in direct and blatant contempt of court. Consequently she allowed the application and cited the Vice Chancellor Kisii University for contempt of the court order and fixed the matter for sentencing on 30th November, 2021 thus precipitating this appeal. 13.We have considered the grounds of appeal, the record of appeal the appellant’s submissions together with the relevant statutory provisions and case law. To charge and convict a party for contempt of court orders is a serious matter. Contempt of court is quasi-criminal in nature requiring proof well above the balance of probabilities which is the standard of proof in civil cases and approaching the beyond reasonable doubt standard in criminal cases. See Mutitika vs. Baharini Farm Ltd [1985] KLR 229, 234 where the Court stated as follows regarding the standard of proof:“A contempt of court is an offence of criminal character. A man may be sent to prison. It must be proved satisfactorily….In our view the standard of proof in contempt proceedings must be higher than proof on the balance of probabilities, almost not exactly, beyond reasonable doubt …The standard of proof beyond reasonable doubt ought to be left where it belongs, to wit, in criminal cases . It is not safe to extend it to offences which can be said to be quasi- criminal in nature.’’ 14.Often and as the circumstances of this case show, the very liberty of the citizen is at stake. Hence the requirement for strict proof that; the order alleged to be breached was clear and unambiguous in its terms requiring a party to either do or refrain from doing something; the order was brought to the notice of the party being charged and the consequences of breach brought to his or her attention. This is done by affixing a penal notice on the order. And it must be shown that the party charged knowingly and willfully disobeyed the order. 15.In the instant case the order alleged to have been breached is dated 28th October, 2020 and is directed at a letter dated 1st October, 2020 which the ELRC stayed. There was no letter dated 1st October, 2020 directed to the respondent by the appellant on the subject of redundancy. The letter directed to the Respondent is dated 30th September, 2020. It is the letter that the respondent acknowledged in its letter dated 5th October, 2020 in which the respondent requested for a consultative meeting to discuss the imminent redundancy of its members. Indeed two meetings were held but no agreement was reached. Thereafter the respondent moved to the Employment and Labour Relations Court with a claim for various reliefs for wrongful termination of employment based on the letters sent to the individual employees dated 1st October, 2020. The respondent did not contest the redundancy notice dated 30th September, 2020. That notice run its course with consequence that the respondent’s members became redundant. The order of 28th October, 2020 did not stop the implementation of the redundancy notice dated 30th September, 2020. 16.In those circumstance, the finding by the learned judge, that the appellant was in direct and blatant breach of that order has no factual and legal foundation. The holding that the Vice Chachellor Kisii University acted in contempt of court was not merited and is hereby set aside. 17.In the upshot, we find that the appellant’s appeal is merited and allow it. We set aside that part of the ruling of the ELRC dated 16th November, 2022 allowing the respondent’s application dated 6th May, 2021 and dismiss the said application with costs to the appellant. Orders accordingly. The Appellant shall have the costs of the appeal. DATED AND DELIVERED AT NAKURU THIS 17TH DAY OF JULY, 2026.J. MATIVO..................................JUDGE OF APPEALMURUNGI B. KAIRARIA..................................JUDGE OF APPEALAHMED ISSACK................................. JUDGE OF APPEALI certify that this is a True copy of the originalSignedDEPUTY REGISTRAR