Moriasi Arabu Josiah v Youth Enterprise Development Fund Board & another [2020] KEELRC 856 (KLR)
The bottom line
#Kenya's Employment Court found the Youth Enterprise Development Fund Board in contempt for ignoring court orders protecting a former CEO's job, though no punishment was imposed yet.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Respondents disobeyed the court orders issued on 30/4/2020 and dated 4/5/2020 staying the decision not to renew the Petitioner's contract
- 2.Whether the Respondents should be denied audience as contemnors
- 3.Whether the Court lacks jurisdiction to entertain the applications under the Employment and Labour Relations Court (Procedure) Rules, 2016
- 4.Whether the applications were incurably defective for citing repealed provisions of law
Key legal issues
#Jurisdiction of the ELRC over the dispute
The preliminary objection on jurisdiction failed; the Court has jurisdiction over employer-employee matters even after the relationship ends
The Respondents argued no employer-employee relationship existed since the fixed-term contract lapsed on 30/4/2020. The Court held its jurisdiction begins during recruitment and persists after severance, so the objection was not justifiable and was dismissed.
Defectiveness of application under repealed rules
Invocation of repealed section 16(3) of the Industrial Court Rules 2012 was a mere technicality overlooked under Article 159(2)(d)
The Respondents argued the application was anchored on repealed rules and could not issue. Following its own decision in Crown Paints and the Court of Appeal in Martha Wangari Karua, the Court held procedural technicality must yield to substantive justice and dismissed the objection.
Contempt of court
The Respondents were in contempt because they treated the order of 4/5/2020 casually and denied the Petitioner access to his office
The Court found the 4/5/2020 order maintained the status quo as at 30/4/2020 when the contract had not lapsed, effectively forestalling its lapse. The Respondents admitted knowledge of the order but pleaded incapability of implementation, which is no defence; they denied the Petitioner access to his office and were held liable to punishment.
Effect of the interim order of 4/5/2020
The order stayed the decision not to renew the contract and maintained the status quo before the contract lapsed
The Respondents contended the contract had lapsed by operation of law before the order issued, making compliance impossible. The Court held that on 30/4/2020 the contract had not lapsed and the order forestalled its lapse, so the order was capable of being obeyed.
Legal principles established
#- A party cannot plead incapability of enforcement as a defence to contempt; court orders must be obeyed until set aside or appealed
- The ELRC's jurisdiction over employer-employee disputes begins even during recruitment and continues after the relationship is severed
- Citing a wrong or repealed procedural provision is a mere technicality to be overlooked in favour of substantive justice under Article 159(2)(d)
Court orders
#- 1.The Notice of Preliminary Objection dated 21/5/2020 is dismissed
- 2.A finding that the Respondents treated the Court's order casually and are liable to being punished for contempt
- 3.Costs in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court Act, Section 2 (jurisdiction over employer-employee disputes)
Relief refused
#Formal sentencing/punishment of the contemnors and denial of audience
The Court found contempt but the operative orders concluded only with a finding of liability and costs; no punishment order or denial of audience was pronounced in the final orders
Costs
Costs in the cause
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 upshot of my finding is that the Preliminary Objection as raised has no merit and I dismiss it.
My finding is that the Respondent treated this Court's order contemporary and are therefore liable to being punished.
Costs in the cause.
The law on contempt is clear that the Respondent cannot plead incapability of enforcement of Court Orders
this jurisdiction begins even during recruitment and after the relationship is severed
Issues in the judgment
#The Court records a finding of liability for contempt but does not pronounce any sentence, punishment, or order denying audience, leaving the remedy on the contempt finding incomplete in the final orders
The judgment contains an apparent typographical self-contradiction in paragraph 65, using 'contemporary' where 'contemptuously' appears intended
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Moriasi Arabu Josiah v Youth Enterprise Development Fund Board & another [2020] KEELRC 856 (KLR)", Case Analysis (2020). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/856/eng@2020-06-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.