https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2369

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI ELRC JUDICIAL REVIEW NO E036 OF 2026 *(Before Hon. Justice Dr. Jacob Gakeri)* HUMPHREY NAKITARI …………………………………….. PETITIONER VERSUS BOARD OF DIRECTORS NATIONAL GOVERNMENT AFFIRMATIVE ACTION FUND …………………………………….……….. RESPONDENT RULING This the Applicant’s Motion dated 13th May 2026 filed under Certificate of Urgency seeking committal to civil jail of Rebecca Maroa, Samson, Ogola, Joyce Mugure, Halima Daudi, Wilson Bendera, Sephone Ombachi, Bernard Gibet and Ali Isaack Ahmed for six months or such period as this Honourable Court may deem fit and just for disobedience of the court’s order dated 29th April 2026. The Applicant also seeks an order that the OCS Central Police Station be directed to assist in enforcing court orders and maintaining peace as well as costs of the application. The motion is expressed under the provisions of the Constitution of Kenya, Civil Procedure Act, and the Judicature Act and is based on the grounds outlined on its face and the Supporting Affidavit of the applicant. The Applicant’s case is that on 29th April 2026 the court issued a temporary stay of implementation of the recommendation and/or appointment of the Interested Party as the Respondent’s Director Corporate Services and the order was made in the presence of the respondent’s counsel, Mr. Mugunda, for the Interested Party and holding brief for Mr. Kioko for the respondent. That the order was extracted on 30th April 2026 and served on the chair person of the Respondent and the Interested Party. The Applicant deposes that the Interested Party continued to hold the office in defiance of the court order and the conduct of the Respondent’s was deliberate and it was in the interest of justice that they be punished for the court to asserts its dignity. Respondent’s case The Respondent contended that the application was misconceived, incompetent, bad in law and an abuse of court process as the orders dated 29th April 2026 were not retrospective as both recommendation and appointment had already taken place and no breach had been shown. That the order is ambiguous and incapable of the interpretation advanced by the applicant since it related to a concluded issue. That the applicant had failed to demonstrate deliberate and contumacious disobedience of a valid court order and personal culpability of each of the persons cited had not been demonstrated and the Respondent’s decision to seek the advice of the Attorney General was in good faith. The Respondent contended that that the applicant had failed to establish a legal basis to warrant committal of the Respondent’s Board members and the Interested Party to civil jail. The applicant filed a Further Affidavit sworn on 28th May 2026 which raised no new issue. The Interested Party did not respond to the motion dated 13th May 2026. The court has considered the avements by the parties and submissions on record. The singular issue for determination is whether the Respondents Board of directors and the Interested Party are 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 of 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. See the sentiments of the Court of Appeal in Shimmers Plaza Ltd v National Bank of Kenya Ltd (2015) KECA 945 (KLR) on the essence of section 5 of the Judicature Act and the contempt of court law appliable in Kenya. See also Christine Wangari Chege v Elizabeth Wanjiru Evans & 11 others Civil Application No. 233 of 2007. The purpose of obeying court orders has been emphasized and restated in countless decisions. See in this regard Matiangi, Cabinet Secretary Ministry of Interior and Coordination of National Government v Miguna & 4 others (2018) KECA 759 (KLR), Justus Kariuki Mate & Jim G.Kauma v Martin Nyaga Wambora (2014) KECA 590 (KLR), Hadkinson v Hadkinson (1950) ALLER 567, Refrigeration & Kitchen Utensils Ltd v Gulabchand Popatlal shah & another Civil Application No. 30 of 1990 and Mate & another v Wambora & another (2014) KECA 376 (KLR). In determining whether the Interested Party and board members of the Respondent disobeyed a Court order, the court must satify itself that all 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 & other v National Land Commission (2020) KEHC 9233 (KLR) as follows: *“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 by 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 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 injections 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 order;* 3. *The defendant has acted in breach of the terms of the order; and* 4. *The defendant’s conduct was deliberate.”* From the foregoing rendition, it is discernible that the standard of proof in civil contempt cases is higher than in civil cases. This is because civil contempt is *quasi* criminal and if found culpable, the contemnor may loose the constitutionally guaranteed right of personal liberty. In Mutitika v Baharini Farm Ltd (1985) KECA 60 (KLR), the Court of Appeal held: *“We agree with Mr. Khaminwa’s submission’s 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 standard of proof.”* In the instant application, it is common ground that the court by a ruling delivered on 29th April 2026 granted a temporary stay of the recommendation and/or appointment of the Interested Party as the Respondent’s Director, Corporate services pending the hearing and determination of the suit. In his Supporting Affidavit, the applicant attached appointment letters from the Chief Executive Officer of the Respondent to act as Director Corporate services and as the CEO sometime in April 2025. He also attached signed minutes of the Respondent’s Board of Directors for the meeting held on 21st November 2025 which recommended the Interested Party for Appointment to the position of Director Corporate Services on 3rd March 2026. From the attendance it is clear that the applicant did not attend the meeting nor was he a member of the Respondent’s Board but for unexplained reasons he had access to authenticated minutes of meetings of the Board and filed the same in court to support his case. The inference is clear. The applicant’s Supporting Affidavits on record made no reference to the effect that the Interested Party was ultimately appointed and took over the position. When the matter came up on 9th April 2026, counsel for the applicant sought an order of maintenance of the *status quo* because the letter had not been dispatched to the Interested Party. Counsel for the Respondent on the other hand stated that the letter had already been written and sought time to show that the Interested Party had assumed office. These assertions by counsel were not factual as no appointment letter had been issued by 9th April 2026. Infact, counsel for the applicant stated that there was a person serving in an acting capacity at the time. Directions on filing and service of responses and submissions were issued and a ruling date fixed. Strangely, neither of the parties disclosed to the court what transpired after 9th April 2026, facts which would have assisted the court in determining the application. It is in subsequent applications that it is emerging that the Interested Party was appointed on 10th April 2026 and assumed office and continues to hold the office. Thus, by 20th April, 2026, the appointment had been made and the orders made by the court were to all intents and purposes academic. The court could not stay a concluded process and the applicant had not sought an order to stay implementation of the appointment of the Interested Party since the application was filed before the appointment, no amendment was effected and no leave to amend was sought. It behooved the Applicant to keep the court informed of the factual changes which affected his case. If the Interested Party was already serving as Director, Corporate Services on 29th April 2026, the appointment was spent as was the recommendation for his appointment and as averred court orders do not operate retrospectively. The Respondent too had a duty to keep the court abreast of the facts in its response which was filed after the court had issued directions and given a ruling date. Neither party made a full and frank disclosure of the facts after 9th April 2026. Clearly, if the court was aware that the Interested Party had already assumed office, the orders, the subject matter of this application would not have been made and the instant application would not have arisen. However, while the Respondent’s request for advice from the Attorney General was noted, this was a live case in court and both parties had access to the court if they there of the view that the order was vague, ambiguous or unimplementable. No clarification was sought. In this application, the burden of proof lay on the applicant to show that the alleged contemnors were indeed guilty of contempt of court. The respondents were undoubtedly aware of the order and its terms, the seeking of an advisory from the office of Attorney General notwithstanding. Their first port of call should have been the court. As to whether the Respondent’s acted in breach of the court orders, the court is not persuaded they did. They did nothing they had not done prior to the orders being granted on 29th April 2026 since the recommendation and appointment had already been made. The Interested Party was already in office and did nothing extra or additional to vary or modify the court order of action its breach. There having been no breach of the court order, the issue of wilfness or intentional could not arise. Flowing from the foregoing, it is decipherable that the applicant’s notice f Motion dated 13th May 2026 lacks merit and it is accordingly dismissed with no orders as to costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 31ST DAY OF 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