Clerk, Nairobi City County Assembly v Speaker, Nairobi City County Assembly & 6 others (Petition 194 of 2018) [2019] KEELRC 93 (KLR)
The bottom line
#Kenya's Employment Court confirmed that contempt applications can be brought by notice of motion, dismissing a technical objection against a reinstated county assembly clerk.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection met the Mukhisa Biscuits threshold of pure points of law
Grounds 1, 2 and 3 were pure points of law capable of disposing of the application in limine; grounds 4 and 5 went to the merits and required evidence, so only grounds 1-3 were determined.
The court applied the classic Mukhisa Biscuits formulation that a preliminary objection must consist of a point of law which, if argued as a preliminary point, may dispose of the suit. Grounds alleging failure of personal service and absence of proof of service required evidence and could not be determined at the preliminary stage. The surviving grounds were collapsed into the second issue concerning compliance with section 5 of the Judicature Act.
Whether use of a notice of motion instead of an application notice under Part 81 of the English Civil Procedure Rules rendered the contempt application incompetent
No. The court held that an application notice in England is the equivalent of a notice of motion in Kenya, and foreign procedure must be applied with local modification under Article 159.
Section 5(1) of the Judicature Act imports English contempt procedure, and Part 81.10 of the English Rules requires a committal application by application notice. However, the court analysed the content requirements of an application notice and found the notice of motion satisfied them: it set out the grounds, identified each alleged act numerically, and was supported by an affidavit. Since no prejudice was demonstrated and Order 51 rule 10 directs that no application be defeated for want of form not affecting substance, the motion was competent. Christine Wangari Gachege was distinguished as dealing with leave, not the substantive committal application.
Whether the application was incompetent for failure to serve the Attorney General as the equivalent of the Crown office
The objection failed because the 2012 amendments to the English Rules repealed Order 52 and abolished the requirements of leave and notice to the Crown office for breach-of-order committal applications.
The court accepted that under the repealed Order 52 regime notice to the Crown office was required, but held that Part 81 replaced Order 52 and abolished those requirements. It followed Sam Nyamweya v Kenya Premier League where Aburili J held no notice to the DPP/AG was necessary, and distinguished Buruburu Farmers Ltd v Joseph Kiongo, which was decided under the since-repealed Order 52.
Whether invoking a non-existent provision (section 28(1)(g) of the ELRC Act, repealed by Act No. 18 of 2014) rendered the application fatally incompetent
It was an error, but not fatal, because the application also invoked section 5(1) of the Judicature Act, the main provision on contempt, and Article 159 and Order 51 rule 10 counsel against defeating applications on such technicality.
The court agreed section 28 of the ELRC Act no longer exists, but noted the application was also properly anchored on section 5(1) of the Judicature Act. Applying the Supreme Court's strictness in Daniel Kimani Njihia and Michael Mungai, the judge explained that such strictness applies to the apex court, which lacks a provision like Order 51 rule 10; in the ELRC the guiding policy is that failure to cite the correct provision is a curable technicality where substance is unaffected.
Legal principles established
#- A notice of motion in Kenya is equivalent in form and substance to an application notice under the English Civil Procedure Rules, and contempt proceedings may properly be initiated by notice of motion.
- Foreign procedural law imported under section 5 of the Judicature Act must be applied with modification to suit local circumstances.
- After the repeal of Order 52 of the English Rules by the Civil Procedure (Amendment No. 2) Rules 2012, leave and prior notice to the Crown office (Attorney General) are no longer required for committal applications for breach of a judgment or order.
- Reliance on a repealed statutory provision is not fatal where the application also invokes the correct main provision, applying Article 159 and Order 51 rule 10.
Court orders
#- 1.The preliminary objection dated 12th November, 2019 is dismissed with costs to the Petitioner.
- 2.The application dated 11.11.2019 to be heard on a priority basis on a date to be fixed in court, with the respondents to be served with the application to appear for the hearing.
- 3.Parties directed to comply with the consent orders issued on 30.10.2019 which reinstated the petitioner as the Clerk, Nairobi City County Assembly pending the hearing and determination of the petition.
- Jurisdiction invoked
- Section 5(1) of the Judicature Act (procedure for contempt imported from the High Court of Justice in England) and Article 159 of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Clerk, Nairobi City County Assembly v Speaker, Nairobi City County Assembly & 6 others (Petition 194 of 2018) [2019] KEELRC 93 (KLR)", Case Analysis (2019). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/93/eng@2019-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.