Kenya Local Government Workers Union v Nakuru County Council on Behalf of Naivasha Municipal Council [2015] KEELRC 364 (KLR)
The bottom line
#A union's bid to jail Nakuru County officials for ignoring a court order failed because the order was never personally served with a warning notice.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether Nakuru County Government is the legal successor of Naivasha Municipal Council.
- 2.Whether the Respondent is in contempt of Court.
- 3.If the answer to (i) and (ii) above is in the affirmative, what remedy is to be granted to the Applicant.
Key legal issues
#Whether Nakuru County Government is the legal successor of Naivasha Municipal Council
Yes; Nakuru County Government is the natural and presumptive legal successor of the defunct Naivasha Municipal Council and is bound by the judgment of 31 August 2007.
Relying on Section 33 of the Sixth Schedule to the Constitution and on decisions of Majanja J in Argos Fisheries and Okong'o J in Umenda, the court held that proceedings against defunct local authorities should proceed against the county government in whose jurisdiction the authority was located. The Governor and County Secretary have a legal obligation to implement the judgment on behalf of the Respondent.
Whether the Governor and County Secretary are in contempt of the 2007 judgment and decree
No; contempt was not established because personal service of the order with an endorsement of the penal consequence was not proved.
The law as stated by the Court of Appeal in Christine Wangari Gachege and in Wang'ondu requires personal service of the order with penal notice before committal. The supporting affidavit did not state that personal service of the order with penal endorsement was effected on the officials. Contempt must be proved beyond reasonable doubt. Financial difficulties did not excuse, but the procedural defect was fatal to the application.
What remedy should be granted if contempt is established
No remedy granted because contempt was not proved; the court signalled willingness to punish defiance if a proper application is brought.
Having found no proof of contempt, the committal and enforcement reliefs fell away. The court nonetheless observed that the Respondents appear aware of the order and their obligation to enforce it, and warned that a properly constituted application would likely succeed, leaving the Applicant at liberty to re-apply with proof of personal service.
Legal principles established
#- County Governments are the natural and presumptive legal successors of defunct local authorities under Section 33 of the Sixth Schedule to the Constitution and are bound by judgments against those local authorities.
- No court order requiring a person to do or abstain from doing an act may be enforced in contempt unless a copy of the order has been served personally on that person with an endorsement of the penal consequence.
- Mere knowledge of the terms of a court order and disobedience is not enough to commit for contempt; endorsement of penal consequences on the served order is an essential step.
- Contempt must be proved beyond reasonable doubt and the terms of the order must be clear and unambiguous.
Court orders
#- 1.The Notice of Motion seeking contempt proceedings against the County Secretary and Governor is dismissed
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Inherent jurisdiction to punish contempt of court in respect of non-compliance with judgment in Industrial Cause No. 132 of 2006; applicable law via Section 5(1) of the Judicature Act and Section 63 of the Civil Procedure Act
Relief refused
#Commencement of contempt proceedings against Joseph Mugosi Motari and Kinuthia Mbugua
Personal service of the order with penal notice endorsement was not proved; the application did not demonstrate personal service of the order with penal consequence endorsement
Committal of the County Secretary and Governor to civil jail
Contempt not proved beyond reasonable doubt for want of personal service of the order with penal notice
Order compelling the County Secretary to comply with the 2007 judgment
Application dismissed for failure to establish contempt; the Court noted a properly brought application may succeed
Costs
The Application is dismissed with no order as to costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Application is dismissed with no order as to costs.
Should a proper application be brought, the Court will not hesitate to punish those who may be perpetuating defiance of orders of this Court that have not been set aside.
Nakuru County Government is therefore legally bound by the Judgment of Hon. Paul K. Kosgei J. delivered on 31st August, 2007 in favour of the Claimant / Applicant against Naivasha Municipal Council.
as a general rule no order of Court requiring a person to do or abstain from doing any act may be enforced unless a copy of the order has been served personally on the person required to do or to abstain from doing the act in question.
The Applicant has failed to prove beyond reasonable doubt that the cited contemnors are in contempt of Court.
Issues in the judgment
#The cause number is inconsistently referred to as Cause No. 132 of 2006 and Cause No. 132 of 2001, and the judgment date appears as 31st August 2007 in most passages but as 'judgment dated 31st August 2008' in the Respondent's submissions.
The County Secretary's name is spelled inconsistently (Joseph Mugosi Motari, Joseph Mugusu Motari, Joseph Mogusi, Joseph Mogosi).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Local Government Workers Union v Nakuru County Council on Behalf of Naivasha Municipal Council [2015] KEELRC 364 (KLR)", Case Analysis (2015). Cause No. 132 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/364/eng@2015-10-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.