https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2152

REPUBLIC OF KENYA IN THE EMPLOYMENT & LABOUR RELATIONS COURT AT NAKURU ELRC MISCELLANEOUS APPLICATION NO. E002 OF 2025 (Before Hon. Lady Justice Anna Ngibuini Mwaure) JAMES WAIREGI WAMBUGU...….……….……..…. APPLICANT VERSUS COUNTY GOVERNMENT OF NYANDARUA……………………………....….. 1ST RESPONDENT COUNTY PUBLIC SERVICE BOARD COUNTY GOVERNMENT OF NYANDARUA……………………...………2ND RESPONDENT COUNTY SECRETARY COUNTY GOVERNMENT OF NYANDARUA…………………….…………… 3RD RESPONDENT RULING Introduction 1. The Respondents/Applicants filed a Notice of Motion dated 17th November 2025 under Certificate of urgency seeking the following orders that: 1.This Honourable be pleased to grant a stay of the contempt proceedings pending before this court, pending the hearing and the determination of the Applicants’ NAKURU MISC NO. E002 OF 2025 RULING 1 | P A G E application for review dated 6th December 2024. 2.This Honourable Court be pleased to make such further or orders as it may deem fit, just and expedient in the circumstances. 3.Costs of this Application be in the cause. 2. The application is brought under Article 159 of the Constitution, sections 1A, 1B, and 3A of the Civil Procedure Act, Order 42 Rule 6 and Order 45 Rule 1(2) of the Civil Procedure Rules, and Rules 17 & 32 of the Employment and Labour Relations Court (Procedure) Rules, 2016. Respondents/Applicants’ supporting affidavit 3. The application is supported by affidavit by Alex Mwaura, Chief Officer for Public Service Management in Nyandarua County, dated 14th November 2025. 4. The Respondents/Applicants aver that in a ruling dated 24th October 2024, the Court found a prima facie case that the Applicant’s dismissal process was incomplete and issued interim orders restraining adverse employment actions, including stoppage of salary and termination. 5. Dissatisfied with orders 2 and 3, the Respondents/Applicants filed a review application NAKURU MISC NO. E002 OF 2025 RULING 2 | P A G E dated 6th December 2024, which remains pending. Yet, despite this, the Applicant instituted contempt proceedings alleging disobedience of the very orders under review. 6. The Respondents/Applicant aver that allowing contempt proceedings to proceed concurrently would risk conflicting decisions, undermine judicial coherence, and erode the dignity of the Court. 7. The Respondents/Applicants therefore urge that the contempt proceedings be stayed until the review is determined, emphasizing that the application was made promptly, in good faith, and without prejudice to the Applicant, thereby reinforcing the need to protect the integrity of judicial authority and procedural fairness. Applicant/Respondent’s replying affidavit 8. The Applicant/Respondent opposed the application vide a replying affidavit dated 21st November 2025. 9. The Applicant/Respondent avers that the application is an afterthought and a gross abuse of the court process intended to delay contempt proceedings. 10.The Applicant/Respondent emphasizes that the court’s orders of 24th October 2024 clearly established that his dismissal was incomplete and NAKURU MISC NO. E002 OF 2025 RULING 3 | P A G E restrained the Respondents from taking adverse action against his employment, thereby affirming his lawful status as an employee. 11.Despite being fully aware of these orders, the Applicant/Respondent avers that Respondents/Applicants have blatantly refused to comply, failed to prosecute his appeal before the County Public Service Board, and engaged in deliberate delay tactics. 12. The Applicant/Respondent argues that contempt proceedings take precedence over interlocutory applications, citing judicial authority that court orders must be obeyed until set aside. 13.The Applicant/Respondent emphasizes that the Respondents have shown no prejudice, no arguable grounds, and no appeal against the orders, and that granting their application would undermine the authority of the Court, encourage impunity, and defeat justice. 14. The Applicant/Respondent therefore urges the Court to dismiss the Respondents’ application and proceed with the contempt hearing to safeguard judicial dignity and enforce compliance. NAKURU MISC NO. E002 OF 2025 RULING 4 | P A G E 15. Parties canvassed the application by way of written submissions Respondents/Applicants’ submissions 16.The Respondents/Applicants submitted that the contempt application is premature, as it is founded upon orders which are themselves the subject of a pending review. The Respondents/Applicants argue that proceeding with contempt would amount to multiplicity of proceedings and risk conflicting outcomes. The Respondents/Applicants further contend that the orders of 24th October 2024 were procured on the basis of material misstatements regarding the Applicant’s employment status, since dismissal had already been communicated on 4th October 2024 following a disciplinary hearing. 17.In support, the Respondents/Applicants rely on the principle that while court orders must ordinarily be obeyed unless set aside, as set out in the case of Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya & Another [2005] KEHC 1767 (KLR), the court retains discretion to manage its processes to prevent injustice and abuse. In Teachers Service Commission (TSC) & 2 Others v Kenya Union of Teachers (KNUT) & 8 Others NAKURU MISC NO. E002 OF 2025 RULING 5 | P A G E [2015] KECA 239 (KLR), the Court of Appeal held that there is no rigid rule denying audience to a party alleged to be in contempt where arguable grounds or jurisdictional questions exist. Similarly, in Rose Detho v Ratilal Automobiles Ltd & 6 Others [2007] KECA 304 (KLR), the Court of Appeal exercised discretion to grant relief despite contempt, emphasizing that the interests of justice must prevail. The High Court in Said v Mussa & 2 Others [2023] KEHC 635 (KLR) also declined to entertain contempt proceedings where parallel proceedings were pending, terming them an abuse of process. 18.Accordingly, the Respondents urge that in the interest of justice, and to avoid irreparable prejudice and conflicting decisions, the Court should exercise its discretion under Order 45 Rule 1 of the Civil Procedure Rules and inherent jurisdiction to stay the contempt proceedings until the review application dated 6th December 2024 is determined. Applicant/Respondent’s submissions 19.The Applicant/Respondent submitted that the Respondents/Applicants’ request to stay contempt proceedings merely because a review application is NAKURU MISC NO. E002 OF 2025 RULING 6 | P A G E pending is legally untenable. The Applicant/Respondent explains that contempt proceedings are sui generis; they deal with enforcing court orders and upholding the Court’s authority, not the merits of the underlying dispute. The essential elements of contempt are the existence of a valid court order, knowledge of that order, and willful disobedience, which are not negated by filing a review or appeal. The law is clear that filing a review or appeal does not operate as a stay of execution or enforcement of court orders. As held in Thuo v Njuru [1998] NBI CA 278, the Court of Appeal affirmed that court orders must be obeyed until set aside, underscoring the inviolability of judicial authority. 20.In Shimmers Plaza Limited v National Bank of Kenya Limited [2015] eKLR, the court stating as follows: “Unfortunately, what we have now is persons both ordinary mortals and person in authority treating court orders with unbridled contempt with blatant impunity. Was the respondent one such person? Unfortunately, the answer to this question is in the affirmative. The order was made in presence of counsel for the respondent who as stated earlier must be presumed to have informed the NAKURU MISC NO. E002 OF 2025 RULING 7 | P A G E respondent of the same. He went ahead and transferred the property before the due date of the judgment seemingly impatient to have this matter concluded once and for all. He acted in clear contempt of this Court. Government institutions, State officers, banks, and all and sundry are enjoined by law to comply with Court orders. We must deprecate in the strongest terms possible the worrying trend in this country where court orders are treated with tremendous contempt by persons and institutions which think wrongly of course, that they are above the law. We reiterate here that court orders must be obeyed. Parties against whom such orders are made cannot be allowed to trash them with impunity. Obedience of Court orders is not optional, rather, it is mandatory and a person does not choose whether to obey a court order or not. For as Theodore Roosevelt, the 26th President of the United States of America once said: – “No man is above the law and no man is below it; nor do we ask any man’s permission to obey it. Obedience to the law is demanded as a right; not as a favour”. *The courts should not fold their hands in helplessness and watch as their orders are disobeyed with impunity left, right and centre. This would amount to abdication of our sacrosanct duty RULING 8 | P A G E NAKURU MISC NO. E002 OF 2025 bestowed on us by the Constitution. The dignity and authority of the Court must be protected, and that is why those who flagrantly disobey them must be punished, lest they lead us all to a state of anarchy. We think we have said enough to send this important message across.” 21.The Applicant/Respondent contended that the Respondents have openly admitted non-compliance with the court’s orders of 24th October 2024 and have neither purged their contempt nor undertaken to do so. The Applicant/Respondent argued that a stay of proceedings is an equitable and discretionary remedy available only to parties who approach the court with clean hands, and that the Respondents’ persistent disobedience renders them undeserving of such discretion. 22.The Applicant further submitted that contempt proceedings take precedence over interlocutory applications since they go to the very core of the Court’s authority, and staying them would undermine the rule of law and encourage defiance. The Respondents have failed to show any prejudice they would suffer if the contempt proceedings NAKURU MISC NO. E002 OF 2025 RULING 9 | P A G E proceed, while the Applicant continues to endure loss of livelihood and dignity. 23. Consequently, the Applicant urges that the Respondents’ application dated 17th November 2025 seeking a stay is frivolous and abusive, and that the Court should issue summons requiring the Contemnors to show cause why they should not be held in contempt, having demonstrated the existence of a clear and unambiguous court order, the Contemnors’ knowledge of it, and their willful and deliberate disobedience. 24. Consequently, the Applicant urges that it is just and proper for the Court to issue summons requiring the Contemnors to show cause why they should not be cited for contempt and the Respondents have failed to establish any legal or equitable basis and respectfully prays that the court dismiss the applications dated 17th November 2025 with costs. Analysis and determination 25.The court has considered the pleadings herein and the rival submissions on record; the issue for determination is if court can determine a contempt NAKURU MISC NO. E002 OF 2025 RULING 10 | P A G E application and a review application at the same time. 26.Order 42 Rule 6(2) of the Civil Procedure Rules provides as follows: “No order for stay of execution shall be made under subrule (1) unless— (a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and (b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.” 27. In James Wangalwa & Another V Agnes Naliaka Cheseto [2012] KEHC 1094 (KLR) the court set out the condition of stay of execution including substantial loss occurring leading to irreparable loss, security for the due performance of the decree, and whether the application had been made without unreasonable delay. 28.In Butt V Rent Restriction Tribunal [1979] KECA 22 (KLR) the Court of Appeal stated as follows: “The power of the court to grant or refuse an NAKURU MISC NO. E002 OF 2025 RULING 11 | P A G E application for stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal. The general principle in granting or refusing a stay is; if there is no overwhelming hindrance, stay must be granted so that an appeal may not be rendered nugatory should that appeal court reverse the judge’s decision. A judge should not refuse stay if there are good grounds for granting it merely because, in his opinion, a better remedy may become available to the Applicants at the end of the proceedings. The court, in exercise of its discretion whether to grant or refuse an application for stay, will consider the special circumstances of the case and its unique requirements.” 29.In Waruhiu v Directline Assurance Company Ltd [2025] KEELRC 925 (KLR) defined contempt of court according to Black’s Law Dictionary as conduct that defies the authority and dignity of a court. It is a disregard of or disobedience to the orders of a judicial body. 30.In Wekesa & 2 Others v Munialo [2025] KECA 679 (KLR), the Court of Appeal outlined the elements for contempt of court as follows: NAKURU MISC NO. E002 OF 2025 RULING 12 | P A G E a. the terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defendant; b. the defendant had knowledge of or proper notice of the terms of the order; c. the defendant has acted in breach of the terms of the order; and; 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: d. the defendant's conduct was deliberate.” 31.The Respondents/Applicants seek a stay of contempt proceedings on the basis that there is a pending application for review, while maintaining their narrative that the dismissal was lawful. The Applicant/Respondent, however, contends that the Respondents have failed to demonstrate any prejudice that would be occasioned to them should the contempt proceedings proceed. Conversely, it is the Applicant who continues to suffer the grave consequences of loss of livelihood and erosion of dignity. The balance of justice therefore tilts against granting the stay, as the Respondents’ position is unsupported by demonstrable prejudice, whereas NAKURU MISC NO. E002 OF 2025 RULING 13 | P A G E the Applicant’s plight is both immediate and profound. 32.The court will retaliate the sentiments in the case of BUTT -VS- RENT RESTRICTION TRIBUNAL (1979) KECA 22 that the court cannot refuse to grant an application for stay but in each depends on its special circumstances of the case and its unique requirement. 33.In Shimmers Plaza Limited -VS National Bank of Kenya Limited (2015) eKLR where court stated in very strong terms that “court orders cannot be treated with tremendous contempt by persons or institutions which think wrongly of course that they are above the law.” 34.An existing valid court order which is not appealed or set aside must be obeyed by all and nobody is above the law. The court will not sit pretty and observe blatant disobedience of court orders no matter the persons involved in the suit. 35.The court is satisfied that the Respondents/Applicants have fallen short of satisfying the legal threshold for the grant of stay of execution of the Applicant’s application for NAKURU MISC NO. E002 OF 2025 RULING 14 | P A G E contempt. On the contrary, the record demonstrates a consistent pattern of defiance of subsisting court orders. The present application, clothed as one for stay, is in reality a stratagem calculated to buy time and frustrate compliance with the Court's clear and binding directives. Such conduct not only undermines the authority of judicial pronouncements but also betrays a deliberate abuse of process, which this court cannot countenance. 36.The court contemporaneously pronounced itself on the review application by the Respondent. In view of the foregoing, this application has no basis and/or merits and is dismissed accordingly. 37.The respective parties will bear their respective costs of these application. IT IS SO ORDERED. Dated, Signed and Delivered virtually at Nakuru this 24th Day of July, 2026. ANNA NGIBUINI MWAURE JUDGE ORDER In view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light NAKURU MISC NO. E002 OF 2025 RULING 15 | P A G E 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 MWAURE JUDGE NAKURU MISC NO. E002 OF 2025 RULING 16 | P A G E