[2022] KEELRC 1443 (KLR)

Obiero v Lake Basin Development Authority (Petition 4 of 2020) [2022] KEELRC 1443 (KLR) (22 June 2022) (Ruling)

Neutral citation: [2022] KEELRC 1443 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Kisumu

Petition 4 of 2020

S Radido, J

June 22, 2022

In the matter of the constitution of Kenya, 2010, articles 230, 20, 22(3), 41(a)(b), 27, 28, 29, 47(2), 50 and contravention of the right to reasonable working conditions, fair remuneration, equality, freedom from discrimination and fair administrative action, freedom from torture, degrading treatment and fair trial and in the matter of the fair administrative action act no. 4 of 2015 laws of Kenya and in the mater of the employment act, 2007 laws of Kenya sections 5, 26, 45, 47 and other enabling provisions and in the matter of salaries and remunerations act no. 10 of 2011, sections 11, 12 and 13 and In the matter of salaries and remuneration commission act (remuneration and benefits of state and public officers) regulations, 2013

Between

Cliford Otieno Obiero

Petitioner

and

Lake Basin Development Authority

Respondent

Ruling

1. In a judgment delivered on 1 February 2021, the Court ordered the Respondent to compute and pay the Petitioner accrued leave and issue him a Certificate of Service.

2. On 7 March 2022, the Petitioner filed a Motion seeking orders:(1)…(2)That Raymond Omollo, Lake Basin Development Authority, being the Respondents/contemnors be held to be in contempt of court orders/decree made on 17th November 2021 and 2nd February respectively and that they be ordered to serve such period of time in prison custody as the Court may determine or until such time that they will have purged the contempt.(3)That Raymond Omollo, Lake Basin Development Authority, being the Respondents/contemnors, be held in contempt of orders and decree dated 17th November 2021 and 2nd February 2021, respectively and they be ordered to pay such amounts individually as a fine as the Court may in its discretion order as punishment for such contempt and in default, their property be sequestrated and ordered attached and sold to recover the fine so ordered paid.(4)Costs of this application is provided for.

3. The primary ground advanced in support of the application was that despite service of the decree/orders of the Court, the Respondent had declined to comply with the decree.

4. A Legal Manager with the Respondent filed a replying affidavit in opposition to the Motion on 16 March 2022.

5. The Manager deposed in the affidavit that the Petitioner had declined to collect his Certificate of Service despite being informed that it was ready for collection.

6. On the accrued leave, the Manager averred that the Petitioner had 75 accrued leave days amounting to Kshs 181,312/50, but that the amount had been withheld because the Petitioner owed the Respondent Kshs 162,617/- being taxed costs in Kisumu High Court Petition No. 26 of 2019, Clifford Otieno Obiero v Lake Basin Development Authority.

7. The Petitioner filed a further affidavit on 17 March 2022, asserting that he had not been alerted that the Certificate of Service was ready.

8. The Petitioner also denied the depositions in the Respondent’s replying affidavit (the Court was informed on 24 March 2022 that the Certificate of Service had been handed over to the Petitioner).

9. The Petitioner filed his submissions on 10 May 2022, and the Respondent’s submissions were not on record by the agreed timeline of 31 May 2022.

10. The Court has considered the Motion, affidavits, and submissions.

11. The law on contempt requires the party asserting contempt to prove the existence of a court order, the service of the order upon the party sought to be cited or his knowledge of the order and lastly, willful disobedience of the order.

12. The Petitioner already picked up his Certificate of Service, and nothing turns on that aspect of the case.

13. It is not in dispute that there is in place a Court decree ordering the Respondent to compute and pay the Petitioner’s accrued leave. It is also not in dispute that the decree was served upon the Respondent.

14. The Respondent computed the accrued leave days as 75 days and commuted the same to Kshs 181,312/50.

15. The Respondent has, however, declined to pay out the Kshs 181,312/50 on the ground that it had retained the same as a set-off in respect of costs it had been awarded against the Petitioner by the High Court.

16. The attempt by the Respondent to unilaterally recover the amounts awarded to the Petitioner in this Court against costs awarded by the High Court is without any legal foundation. It cannot be a basis for explaining the failure to comply with the decree of this Court.

Conclusion and Orders 17. The Court finds that the Respondent has been in wilful disobedience of its orders.

18. The Court orders:i.The Respondent to pay the Petitioner the sum of Kshs 181,312/50 within 21 days from today.ii.In default, warrants of arrest to issue against Mr Raymond Omollo, the Managing Director of the Respondent, without any further reference to the Court and he be presented in Court for mitigation and sentencing as soon as he is arrested.

19. Costs in the cause.

DELIVERED THROUGH MICROSOFT TEAMS, DATED AND SIGNED IN KISUMU ON THIS 22NDDAY OF JUNE 2022. RADIDO STEPHEN, MCIARBJUDGEAppearancesPetitioner in personFor Respondent Mr. Yogo instructed by Otieno, Yogo, Ojuro & Co. AdvocatesCourt Assistant Chrispo Aura