https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1666

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI ELRC JR NO. E080 OF 2025 *(Before Hon. Justice Dr. Jacob Gakeri)* REPUBLIC .............................................................. APPLICANT VERSUS KENYA NATIONAL LIBRARY SERVICES ……………….RESPONDENT AND JOHN KIPKEMBOI SIGEI…………………..…EX-PARTE APPLICANT RULING Vide a chamber summons dated 28th November 2025, the applicant sought leave to apply for the Judicial Review Order of *certiorari* to remove into court and quash the suspension letter dated 15th October 2025 and a further order of prohibition to prohibit the Respondent from taking any other or further decision against the applicant and an order of *mandamus* to compel the Respondent to reinstate the application and leave to operate as a stay. When the matter came up on 4th December 2025 the court granted leave as prayed and directed that the substantive motion was filed within 14 days, leave to operate as stay of any further disciplinary process against the Applicant and the *status* quo be maintained. The substantive motion was filed on 16th December, 2025. On 19th March 2026, the applicant filed a Notice of motion dated 18th March 2026 seeking leave to commence contempt proceedings against Dr. Charles Nzivo and Albert Nyabuto Nyauntu for alleged disobedience of court orders. That the two be summoned to show cause why they should be cited for contempt for failure to comply with orders made on 4th December 2025. On 23rd March 2026 the court directed the Respondent to file a Replying Affidavit within 14 days, the applicant was granted leave to file a Further Affidavit and submissions within 14 days and Respondent within 14 days in readiness for a motion on 7th May, 2026. Respondent’s case The Respondent filed three (3) affidavits by Dr. Charles Nzivo, the Respondents Chief Executive Officer, Mr. Raphael Kioko Mutua a Records Officer and Mr. Albert Nybulo Nyauntu the Deputy Director Human Resource Department. Dr. Charles Nzivo deponed that the applicant was subjected to internal disciplinary process before the Respondent’s Human Resource Management Advisory Committee (HRMAC) and a decision was reached to dismiss him from employment vide letter dated 26th November 2025. The affiant deponed that the Records officer called the Applicant cell phone number 0721538419 from cell phone number 0748469981 to collect the letter but the Applicant did not collect it and the matter was escalated to Mr. Albert Nyabuto Nyauntu who submitted the dismissal letter to the Applicant via email address john.sigei@knls.ac.ke and via whatsAPP on 2nd December 2025 and by 4th December 2025, the disciplinary process had been concluded. Finally, Dr. Charles Nzivo deponed that although the applicant was supposed to report to the office once every two (2) weeks but last showed up on 3rd November 2025 and the status quo as at 4th December 2025 was that the applicant had been dismissed from employment. Dr. Charles Nzivo availed a copy of the Applicant’s dismissal letter dated 26th November, 2025. The letter makes reference to the Applicant’s invitation for a hearing slated for 21st November, 2025. Second, Mr. Raphael Kioko Mutua confirmed that he received the applicant’s letter from dismissal from the Human Resource Department and confirmed having telephoned the applicant on 27th November 2025 and escalated the matter to Mr. Albert Nyabuto Nyauntu. The affiant availed a copy of the delivery book showing that he received the dismissal letter on 28th November 2025. He also availed evidence of having called the applicant’s cellphone number 0721538419 on 27th November 2025. Finally, Mr. Albert Nyabuto confirmed that he was updated by Mr. Raphael Kioko Mutua on 28th November 2025. He confirmed having sent an email to the applicant via email address john.sigei@knls.ac.ke on 28th November, 2025 to collect the dismissal letter and availed a copy of the email to the applicant. The affiant, subsequently forwarded the letter to the applicant via email on 1st December 2025. Vide a further Affidavit sworn on 30th April 2026 the Applicant deponed that trial court was satisfied that the orders of stay and status quo were deserved since the applicant had an arguable case. The applicant admitted that there were disciplinary proceedings on 9th October 2025. That the proceedings were conducted in bad faith and in breach of due process. The applicant denied having received the dismissal letter prior to 4th December 2025 and learnt of the dismissal from the Respondent’s Replying Affidavit. Although the Applicant faulted the Respondent’s process, he did not cite any provision of the Human Resource Policies and Procedures Manual. That he could not access his email after suspension and was not on WhatsApp. Applicant’s submissions On contempt, reliance was placed on the provisions of section 5(1) of the Judicature Act on the jurisdiction of the court to punish for contempt of court as well as the High Court decision in Republic v Attorney General & another Ex Parte Mike Maina Kamau (2020) eKLR on the elements of contempt namely clear and an unbeguiles court order proper notice or knowledge and deliberate breach of terms of the order. According to counsel, the status quo on 5th December 2025 was the applicant’s suspension to submit that the orders made 4th December 2025 were breached deliberately. Reliance was further placed on the decision in Shimmers Plaza Ltd v National Bank of Kenya Ltd (2015) eKLR to urge that the orders were still in force and had to be obeyed by the Respondent. Also relied upon was the decision in Africa Management Communication International Ltd v Joseph Mathenge Mugo & another (2013) eKLR to submit that the Respondent violated a court order. On knowledge of the court orders, counsel for the applicant submitted that the Respondent was aware of the court order and had counsel in court. The decision in Basil Criticos v Attorney General and 8 others (2012) eKLR on knowledge of the court order as opposed to personal service to urge that the applicant had satisfied the element of actual knowledge of the court order. On knowledge of the court orders, counsel for the applicant submitted that the Respondent was aware of the court order and had counsel in court. The decision in Basil criticos v Attorney General and 8 others (2012) eKLR on knowledge of the court order as opposed to personal service to urge that the applicant had satisfied the element of actual knowledge of the court order. On the meaning of status quo reliance was placed on the decision in Republic v National Environment Tribunal Ex Parte Palm Homes Ltd; Erik Sunde & another (Interested Parties) (2013) eKLR, that status quo meant preservation of existing state of affairs, the existing factual scenario. According to counsel, the dismissal was not communicated to the applicant and only learnt of it from the Respondent’s Replying Affidavit. That the manual was not complied with in communication of the letter of dismissal. That communication was a substantive not a procedural requirement. Finally, counsel maintained that the Respondent’s conduct constituted willful and deliberate disobedience of court orders. Respondents Submissions As to the status quo to be preserved, reliance was placed the decision in Bia Tosha Distributions Ltd v Kenya Breweries Ltd & 6 others (2023) KESC 14 (KLR) on ascertainment of the status quo. Further reliance was placed on Shimmen Plaza Ltd v National Bank of Kenya ltd (2015) KECA 945 (KLR) on the definition of status quo namely; the present situation or the way things are as at the time the order is made, to urge that the all processes had been concluded and the *ex-parte* applicant had been dismissed. As to whether the 1st and 2nd Centerior are in contempt of the court issued on 4th December 2025, counsel cited the sentiments of the court in Shimman Plaza Ltd v National Bank of Kenya Ltd (Supra) to urge that the court ought to satisfy itself beyond any shadow of doubt that the person alleged to be in contempt committed the act in question while aware of the existence of the court order. Reliance was further placed on the decision in James Gachiri Mwangi v John Waweru Muriuki & 3 others (2020) eKLR. It is not in contest that the applicant was at the material time on suspension effective 15th October 2025 after a disciplinary hearing on 9th October 2025 where he made representatives. The letter indicated the reason for suspension was to facilitate further investigations and he was required to report to the office every Monday after two weeks and records availed by the Respondent revealed that he last reported on 3rd November 2025. Records availed by the applicant showed that vide letter dated 17th November 2025, he was invited for a second hearing before the Human Resource Management Advisory Sub-committee on 21st November 2025 at 9.50 am and was advised to avail all the evidence on materials he required and the right to be accompanied by a fellow staff as a witness. Evidently, the Applicant was aware of that there would be an outcome to the meeting and did not deny that he attended the record hearing. In the instant application the Applicant’s case is that the Respondents Chief executive officer and the Deputy Director, Human Resource were in contempt of court orders made on 4th December 2025. The court stayed further disciplinary proceedings against the applicant and ordered that the status quo be maintained. Evidently, the two orders had the same general effect that the state of affairs obtaining at as that date be maintained Pending the hearing and determination of the motion. According to the applicant the respondent took steps that were inconstant with the court orders by purporting to dismiss the applicant from employment contending that at the time he was an suspension. Strangely, neither the grounds in support of the application dated 18th March 2026 nor the supporting. Affidavit sworn by the applicant on 19th March 2026 specify the alleged steps taken by the respondent or when. Both are deafening silent on the date of the alleged dismissal or when the applicant learnt of it. The only issue for determination is whether the respondent’s officials were in contempt of court orders dated 4th December 2025. As correctly submitted by the applicant’s counsel, this court has power to punish for contempt by dint of section 5 (1) of the Judicature Act and there are countless decision of courts on the need to punish for contempt of court and its justification. In Teachers Service Commission v Kamau & 19 others (2015) KESC 35 (KLR) the Supreme Court held: *“From a plain reacting of the foregoing provision, the courts have been given the powers to punish for contempt in order to uphold the dignity of courts…”* See also Hadkinson v Hadkinson (1952) ALLER 567. In Refrigeration and Kitchen Utensils Ltd v Gulabahand Popatlal Shah & another Civil Application No. 39 of 1990, the Court of Appeal held: *“…It is essential for the maintenance of the rule of law and good order that the authority and dignity of our courts is upheld at all times.”* See also Justus Kariuki Mate & another v Martin Nyaga Wambura & another (2014) KECA 590 (KLR) and Teachers Service Commission v Kenya National Union of Teachers & 2 others (2013) eKLR. In Kenya Reinsurance Corporation Ltd v Eunice Mbogo (2019) KECA 612 (KLR) the Court of Appeal stated: “Essentially, to prove that a person has committed contempt of court, it must be demonstrated, that: 1. the terms of the order (or injunction) 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 defendants has acted in breach of the term of the order; and 4. the defendant’s conduct was deliberate… it is essential, for that reason that the breach for which the alleged contemnor is cited be precisely defined. It, must be proved to a standard higher than on a balance of probabilities, almost but not exactly beyond reasonable doubt see Gatharia K. Mutitika v Baharins Farm Ltd (1985) KLR 227” Applying the foregoing tests and principles to the facts of the instant dispute it is clear that the court gave clear and unambiguous orders on 4th December 2005, and the Respondents officers were aware of the orders, which the Respondent served upon the respondent, thus the first two elements of contempt of court were established by the applicant. Nevertheless, the last two requirements remained unproven. It is trite that court made the orders on 4th December 2025 and as adverted to elsewhere in this ruling the applicant has not evidentiary demonstrated any act conduct or omission on the part of the Respondent’s Chief Executive Officer, nor the Deputy Director Human Resource Committed or Omitted after the orders were granted and which were inconsistent with the court orders. The death of documentary or other material showing that the two officers willfully and deliberately or intentionally violated the stay or order of maintenance of the status quo was deferring. As the risk of repetition, verifiable evidence provided by the Respondent revealed that the applicant attended a second hearing on 21st November 2025 and had been notified of his right and expected communication from the respondent on the way forward. Bearing in mind that the applicant was still on suspension the respondent’s records officer, Mr. Raphael Kioko Mutua called him on 27th November 2025 to collect his letter and the applicant picked the call and promised to collect the letter on the following day, 28th November 2025 but did not. The applicant did not deny having talked to Mr. Raphael Kioko Mutua on 27th November 2025 or having been requested to collect his letter. Evidently, the applicant was aware that the respondent had a letter awaiting his collection and was equally aware of what it related to, having been on suspension. Indeed, the applicant admitted that that was his cellphone number, 0721538419. Relatedly, Mr. Albert Nyabuto Nyauntu deponed that after he was notified by Mr Raphael Kioko Mutua that the applicant had not turned up to collect the letter, he sent an email to the applicant requesting him to collect his letter during official working hours but he did not and the letter was forwarded to him via email dated 1st December 2025 at 8.39 to his official email address and on WhatsApp cellphone number 0721538419. In his further Affidavit the applicant deponed that he could not access his official email and his line was not on whatsAPP. The applicant provided no verifiable evidence that he was not on whatsAPP or that he could not access his official email account. This is important because the letter of suspension dated 15th October 2025 neither requested the applicant to handover the respondent’s property in his possession nor deny him the right to access his official email account. It is inconceivable that the respondent had denied him the right of access to his official email and proceeded to forward the dismissal letter to him via the same address. Clearly, the evidence of Dr. Charles Nzivo Raphael Kioko Mutua and Albert Nyabuto Nyauntu left no doubt that the applicant’s employment was terminated on or before 26th November 2026 and reasonable efforts were expended to avail the letter to the applicant following his refusal to collect it. From the evidence on record, it is surmisable that the applicant could have accessed the contents of the letter and the filing of the instant suit on 1st December 2025 was not coincidental. From the foregoing, it is discernible that the applicant has failed to prove that Dr. Charles Nzivo and Mr. Albert Nyabuto Nyauntu were in contempt of the court orders made on 4th December 2025. In the upshot the applicant’s notice of motion dated 19th March 2025 lacks merit and it is accordingly dismissed with no orders costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 17TH DAY OF JUNE, 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