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ELRCPartially AllowedJudicial Review Application dated 24.6.2020 (arising from JR suit with leave granted 20.2.2020)· [2020] KEELRC 23 (KLR)

Maritim v Principals Secretary State Department for Correction Services & 4 others (Judicial Review 4 of 2020) [2020] KEELRC 23 (KLR)

Employment and Labour Relations Court
17 December 2020
2,763 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court found a Principal Secretary guilty of ignoring a court order, but chose not to jail her, urging the parties to settle instead.

What this practically means

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Executive summary

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The applicant, dismissed from training at the Kenya Prisons Training College, obtained a ruling on 9.3.2020 directing that leave to apply for judicial review operate as a stay, and that the 1st, 3rd and 4th Respondents readmit him and continue training pending determination of the suit. The Respondents did not comply, prompting this application dated 24.6.2020 seeking committal of the Principal Secretary, State Department for Correctional Services, to civil jail and a declaration that Mrs. Zainab Hussien is unfit to hold public office. The court framed three issues: contempt, committal, and the declaration. Applying the three-part threshold - proof of knowledge or service, proof of violation, and proof of deliberateness - the court found knowledge established because the Respondents' counsel was present when the ruling was delivered, and non-compliance was admitted in the Replying Affidavit. Although the Respondents offered an explanation grounded on the Covid-19 lockdown and the applicant's missed training, they had neither appealed nor sought review of the order, and the court held the obligation to obey subsists until an order is discharged. The Principal Secretary was accordingly cited for contempt. However, committal to civil jail is a last resort to be exercised with utmost care; taking the Respondent's explanation and proposed consent judgment (readmission at the next recruitment) as mitigating factors, the court deferred sentencing to enable the parties to record the consent. The declaration of unfitness to hold public office was refused for want of pleaded particulars and substantive pleadings. Judgment was delivered online pursuant to Covid-19 directives.

Key legal issues

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01

Whether the respondent was in contempt of the order of 9.3.2020

Holding

Contempt established; the respondent was aware of the order, admitted non-compliance, and did not seek review or appeal

Reasoning

The court applied a threefold threshold: proof of personal service or knowledge, proof of violation, and proof the violation was deliberate. Counsel for the respondent was present when the ruling was delivered, which suffices for knowledge; the respondent admitted the order was not complied with; and having made no application for review or variation, the respondent merely ignored the order, establishing wilfulness.

p. 4
02

Whether the contemnor should be committed to civil jail

Holding

Sentencing deferred to allow the parties to record the proposed consent judgment

Reasoning

Commitment to civil jail must be exercised as a last resort with utmost care. The court took the respondent's explanation (the applicant had missed crucial training areas and his class had graduated) and the proposed consent judgment as mitigating factors, and deferred sentencing to allow a consent judgment adopting readmission at the next recruitment.

p. 4
03

Whether the respondent should be declared unfit to hold public office

Holding

Declaration declined for lack of pleaded particulars and substantive pleadings

Reasoning

The applicant did not set out the particulars of the alleged violated constitutional rights or the manner of violation. The declaration sought is substantive relief with far-reaching consequences and must be sought through substantive pleadings enabling the court to investigate the allegations before pronouncing itself.

p. 4

Legal principles established

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  • Knowledge of a court order supersedes proof of personal service for contempt purposes
  • A party who knows of a court order cannot disobey it on the belief it is invalid; the proper course is to seek its discharge, review or variation
  • Court orders are compulsive and peremptory and must be obeyed regardless of the status of the party

Court orders

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  1. 1.The application is allowed to the extent that Mrs. Zainab Hussein, Principal Secretary State Department for Correctional Services, is cited for contempt of the Court Order dated 9.3.2020.
  2. 2.Sentencing of the contemnor is deferred to give the parties a chance to consider the proposed consent judgment.
  3. 3.The matter to be mentioned on a date to be agreed between counsel for the two sides.
Jurisdiction invoked
Contempt jurisdiction of the Employment and Labour Relations Court under the law applicable in England as at the time the proceedings are instituted (English Civil Procedure (Amendment No.2) Rules 2012, Rule 81.5 and 81.8)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Maritim v Principals Secretary State Department for Correction Services & 4 others (Judicial Review 4 of 2020) [2020] KEELRC 23 (KLR)", Case Analysis (2020). Judicial Review Application dated 24.6.2020 (arising from JR suit with leave granted 20.2.2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/23/eng@2020-12-17

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.