https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1734

Sholapurka & 33 others v Mediheal Group Ltd & 17 others (Cause E042 of 2023) [2026] KEELRC 1734 (KLR) (19 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1734 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nakuru Cause E042 of 2023 AN Mwaure, J June 19, 2026 Between Tanay Upendra Sholapurka 1st Applicant Bobin Thomas Cherian 2nd Applicant Bhanuprakash Jakkalavadiki 3rd Applicant Nikita Sharma 4th Applicant Rishi Raj Singh 5th Applicant Vipin Varghese 6th Applicant Nur Diyanah Binti Jabarullah 7th Applicant Mathewmani Muruganantham Sivanammal 8th Applicant Akkenapally Rajendra Prasad 9th Applicant Sandeep S Sharma 10th Applicant Vishal Shinde 11th Applicant Honey Choudhary 12th Applicant Karmugilan Karmegam Subburaj 13th Applicant KP Naga Arunasri 14th Applicant Lalit Varadpande 15th Applicant Murali Mohan Muthyala 16th Applicant Rachana Sharma 17th Applicant Ramasamy Karthikai Selvi 18th Applicant Subhash Ushakoyala 19th Applicant Surekha Boreddy Veera 20th Applicant Ajish R John 21st Applicant Bijo John 22nd Applicant Ganpat Suthar 23rd Applicant Hitesh Bhatt 24th Applicant Maneesh Mathew 25th Applicant Nimeesh Abraham 26th Applicant Ribu C Baby 27th Applicant Sarvesh S Chouhan 28th Applicant Bency P Kunjumon 29th Applicant Jency George 30th Applicant Mohanlal Hiraram Bisnoi 31st Applicant Vijaysinh Patil 32nd Applicant Ashwin Soni 33rd Applicant Sunil Dube 34th Applicant and Mediheal Group Limited & 16 others Respondent and National Health Insurance Fund (Now Social Health Authority) Garnishee Ruling Introduction 1.The Claimants/Applicants filed a Notice of Preliminary Objection dated 27th January 2026, seeking the following grounds: 1.It is settled law that a Contemnor has no right of audience in any court of law unless they are punished or purges the contempt. 2.It is also settled law that an alleged Contemnor will not be allowed to prosecute any application to set aside orders or take any other step until the Application for contempt is heard. 3.Based on the foregoing, the 1st Garnishee has no locus to prosecute the Motion dated 1st December 2025 and cannot be heard unless and until the Contempt Application dated 24th September 2025 brought against it is heard and determined, and the 1st Garnishee purges its contempt if found to be in contempt of this Honourable Court’s Orders. 2.Parties canvassed the Notice of Preliminary Objection by way of written submissions. Claimants/Applicants’ written submissions 3.The Claimants/Applicants relied on the case of Mukisa Biscuits Manufacturing Co. Ltd v. West End Distributors [1969] EA 696, which defined a preliminary objection as follows:a.An objection that 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.b.What, in essence, used to be a demurrer and an objection that raises a pure point of law, which is argued on the assumption that all the facts pleaded by the other side are correct. 4.The Claimants/Applicants argue that obedience to court orders is mandatory and cannot be treated as optional, as affirmed in the case of Shimmers Plaza Ltd v National Bank of Kenya Ltd [2015] KECA 945. Once contempt of court is alleged, it must be addressed before any other matter save jurisdiction, as set out in the case of Albert Kigera Karume v Kung’u Gatabaki [2015] KEHC 8190. The Claimants/Applicants submitted that since the 1st garnishee’s application does not raise jurisdictional issues; the contempt application must take precedence. The principle is reinforced in the case of Hadkinson v Hadkinson [1952] 2 All ER 567, where the English Court of Appeal held as follows:“it is the plain and unqualified obligation of every person against, or in respect of, whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged…As long as it existed, it must not be disobeyed. Such being the nature of this obligation, two consequences will, in general, follow from its breach. The first is that anyone who disobeys an order of the court … is in contempt and may be punished by committal or attachment, or otherwise. The second is that no application to the court by such a person will be entertained until he has purged himself of his contempt.” 5.The Claimants/Applicants emphasize that the principle of obedience to court orders is absolute and has been consistently upheld across jurisdictions. In La Dolce Vita Fine Dining Co Ltd v Zhang Lan [2020] HKCFI 622 and E.W v V.T.H [2025] ZAWCHC 162, courts reiterated that contempt must be dealt with before any other matter. Equity also bars a party from benefiting from its own wrong, as held in Kona v Attorney General [2022] KEELC 15746, while the Court of Appeal in Dorothy K. Kwonyike v Victoria Commercial Bank Ltd [2000] KECA 277 confirmed that even irregular orders must be obeyed until properly set aside. 6.The Claimants/Applicant submitted that the 1st garnishee’s continued disobedience of the subsisting orders of 5th March 2025 and 8th October 2025 forms the unlawful basis of its application, and to allow it audience would reward defiance and undermine judicial authority. The Supreme Court in Bia Tosha Distributors Ltd v Kenya Breweries Ltd [2023] KESC 14 further held that a contemnor has no right of audience until contempt is purged. 7.Since the garnishee’s application does not affect the operative order of 5th March 2025, the Claimants/Applicants argue that the court to prioritize that the contempt application, ensuring that the rule of law and the sanctity of court orders are preserved. 1st Garnishee submissions 8.The 1st garnishee submitted that the Preliminary Objection is premature and misconceived, and that it seeks to bar its audience. While the Claimants/Applicants relied on Hadkinson v Hadkinson (supra) to argue that a contemnor cannot be heard, Kenyan jurisprudence has clarified that the rule is not absolute. The 1st garnishee relied on the case of Teachers Service Commission v Kenya National Union of Teachers [2013] eKLR, where the court held that parties accused of contempt retain the right to be heard, particularly where they challenge the validity or jurisdiction of the order said to be breached. Similarly, Macfoy v United Africa Co. Ltd [1961] 3 All ER 1169 established that a void order is a nullity and cannot form the basis of contempt. The 1st garnishee stresses that contempt proceedings are quasi-criminal and require proof beyond a reasonable doubt, meaning mere allegations do not extinguish the constitutional rights to access justice and a fair hearing under Articles 48 and 50. 9.The 1st garnishee further relied on the case of Bia Tosha Distributors Ltd v Kenya Breweries Ltd(Supra), where the Supreme Court emphasized proportionality and constitutional safeguards in enforcing court orders, and Shimmers Plaza Ltd v National Bank of Kenya Ltd(supra), which underscored obedience to orders but did not impose an automatic bar to audience. The 1st garnishee argued that the denial of audience is discretionary, dependent on the nature and impact of the alleged contempt, and should only be exercised cautiously to uphold judicial authority. Since the contempt application against its CEO is yet to be determined, barring the 1st garnishee from prosecuting its application would amount to presuming guilt before trial. 10.Accordingly, the 1st garnishee maintains that its application raises fundamental issues, including the legality of garnishee orders and the handling of public funds that must be ventilated. It therefore prays that the Preliminary Objection dated 27th January 2026 be dismissed with costs, allowing the matter to proceed on its merits. 11.At the time of writing of this ruling, the Respondents did not file any written submissions. Analysis and determination 12.The court has considered the preliminary objection together with the submissions by the parties; the issue for determination is whether the preliminary objection is merited and in particular should the 1st Garnishee be denied audience to the court and are they in contempt of court? 13.The court reiterated the case of Mukisa Biscuits Manufacturing Co. Ltd v. West End Distributors (Supra), where the preliminary objection should raise points of law. In John Florence Maritime Services Ltd & Another v Cabinet Secretary Transport & Infrastructure & 3 Others [2021] KESC 39 (KLR), the Supreme Court held that a preliminary objection consisted of a point of law which had been pleaded, or which arose by clear implication out of pleadings, and which if argued as a preliminary point, could dispose of the suit. 14.The argument before this Honourable court is to consider whether the contemnor has locus standi regarding its application dated 1st December 2025, despite disobeying court orders. In Hadkinson v Hadkinson(Supra) the court held that a party in contempt should not be heard until the contempt is purged. In Bia Tosha Distributors Ltd v Kenya Breweries Ltd(supra), the Supreme Court held that a contemnor has no right of audience until contempt is purged. 15.The history of this matter is that on 10th November 2023 this Honourable court granted a Garnishee Nisi orders to the effect inter alia all funds and payments due to the Respondents held by the 1st, 2nd and 3rd Garnishees are hereby attached pending the hearing and determination of the said application. It is noteworthy that the said Garnishee order was not appealed by the Garnishees or set aside upto date. What does that mean?The Garnishee order is till legitimate and there is no grounds presented in court to justify failure to obey legitimate court orders granted by a competent court with requisite jurisdiction. 16.The order has been in place for a long time since November 2023 and as earlier observed the Garnishees have not challenged the said Garnishee Order. 17.That further, on 5th March 2025 the Honourable court gave directions inter alia that by a consent executed by the Claimant’s counsel and the Respondent’s dated 25th February 2025 which was adopted as an order of the Honourable court and among other orders, the court ordered Kshs.150,000,000/= held by the 1st Garnishee be remitted to the joint account of the respective counsels.The said amount was then to be released to the Claimant’s account within 3 working days. Once again, this order has not been set aside and there is no reason why the 1st Garnishee has not been pro-active in settling the amount held in their account or applying to set the orders aside. 18.The court noted that the Replying affidavit by the 1st Garnishee dated 11th November 2024 they admitted holding Respondent’s funds and stated they were willing to remit the same as would be directed by the court. 19.The court also noted that the 1st Garnishee on several occasions informed the court they were willing to remit the funds held on account of the Respondent.To add to that the 1st Garnishee paid the Claimants Counsel Kshs.23,648,064 on 18th January 2024. 20.It is therefore surprising that in their aforesaid Replying affidavit dated 16th February 2026 the 1st Garnishee said they needed to verify the accounts and any payments made without due process could lead their officers to serious scrutiny. So, the 1st Garnishee has had close to three years to undertake the process of verification and still he is not giving an indication as to how long the process is likely to take. The court cannot leave a matter outstanding indefinitely as justice delayed is justice denied. 21.The Garnishee orders furthermore is to attach the debt due to a judgment debtor and held by a Third party (the Garnishee). Once the order is issued under order 23 of the Civil Procedure Rules the Garnishee is only required to show up in court to either acknowledge or dispute the debt. The 1st Garnishee has never denied they hold the Respondent’s funds. 22.Having considered the application, the respective submissions and case Laws, the Court is satisfied that the contemnor was afforded ample opportunity to purge its contempt. Yet, despite repeated indulgences and clear directions, it has persisted to deliberate disobedience. The contemnor cannot now be heard to complain, for it was made plain that redemption lay in compliance. Its continued defiance demonstrates not mere oversight but willful disregard of the authority of this Court. 23.Flowing from the foregoing, the court is persuaded the Preliminary objection is meritorious. It is granted. The 1st Garnishee’s application dated 1st December 2025 will not be heard until the 1st Garnishee honours the Court Orders. 24.The costs will be in the cause. IT IS SO ORDERED. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 19TH DAY OF JUNE, 2026.ANNA NGIBUINI MWAUREJUDGEORDERIn 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.A signed copy will be availed to each party upon payment of Court fees.ANNA NGIBUINI MWAUREJUDGE