Directline Assurance Company Limited & 6 others v Terry Wijenje & 5 others [2021] KEELRC 1430 (KLR)
The bottom line
#Kenya's Employment Court dismissed a bid to punish Directline Assurance's opponents for contempt, confirming contempt must be proven beyond reasonable doubt.
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 court has jurisdiction to determine the instant application for contempt of court
- 2.Whether the orders sought (leave to file contempt proceedings and consequential committal/fine orders) should issue
- 3.Whether the respondents' conduct amounted to contempt taking the form of interference with the administration of justice
- 4.Whether the 4th applicant, an alleged undercharged bankrupt, has capacity to support the application
Key legal issues
#Jurisdiction of the ELRC over the contempt application
The court has jurisdiction to punish for contempt under its Article 162 mandate, but cannot assume jurisdiction over the shareholding disputes pending before the High Court
The respondents challenged jurisdiction, arguing the application concerned internal company affairs and shareholding disputes already before the High Court in Civil Suits E278 and E277 of 2019. The court held its specialised mandate under Article 162 carries inherent power to punish for contempt, but declined to delve into the shareholding question, as doing so would offend the sub judice rule and encroach on the High Court's pending suits.
Whether the respondents' conduct amounted to contempt
No contempt was established; the impugned email concerned governance matters within the Commissioner of Insurance's statutory mandate and did not intentionally violate the court's authority
The court read the 6th respondent's email as addressing board paralysis, appointments and shareholder interference, not as a collusive bargain to defeat the suit. The claimant's employment stood terminated with no interim reinstatement, and parallel suits on directorship and shareholding remain before the High Court and a criminal case. The applicants failed to prove deliberate, intentional interference beyond reasonable doubt.
Standard of proof in contempt proceedings
Contempt must be proved beyond reasonable doubt, higher than the ordinary civil standard, because the proceedings are quasi-criminal and liberty is at risk
Relying on J G K v F W K and Katsuri Limited v Kapurchand, the court reaffirmed that although contempt proceedings are civil in nature, the applicant must prove the elements beyond reasonable doubt since penal sanctions may be imposed and the contemnor's liberty is at risk. The conduct must be deliberate, wilful and mala fide, an honest belief in non-compliance being incompatible with the requisite intent.
Capacity of the 4th applicant as an undercharged bankrupt
The court declined to determine the challenge to the 4th applicant's standing on the merits, holding the claimant's suit should be heard on its merits
The claimant argued the 4th applicant, being an undercharged bankrupt under Gazette Notice No.7678, lacked capacity to be a director or support the application under sections 223, 228 and 230 of the Companies Act. The court noted the claimant herself defined the 4th respondent in her Memorandum of Claim and held that without going into the merits, the claim should be heard on its merits.
Legal principles established
#- An applicant in contempt proceedings must prove contempt beyond reasonable doubt, the proceedings being quasi-criminal
- The Employment and Labour Relations Court, under its specialised constitutional mandate, has inherent power to punish for contempt
- Contempt consists in unlawfully and intentionally violating the dignity, repute or authority of a judicial body or interfering with the administration of justice in a pending matter
Court orders
#- 1.Applications dated 24th June, 2020 and 23rd June, 2020 dismissed
- 2.Costs to abide the outcome of the claim
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2) of the Constitution and section 12 of the Employment and Labour Relations Court Act; section 5 of the Judicature Act
Relief refused
#Leave to file contempt of court proceedings against the respondents
The court found no contempt: the email relied on concerned ordinary governance of the company and the shareholding dispute is sub judice before the High Court
Fine of Kshs.10 million against the 3rd respondent and committal of the 1st, 3rd to 5th respondents to civil jail for 6 months
No contempt was established to the required standard of proof beyond reasonable doubt
Costs
The costs shall abide the outcome of the claim.
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.
Accordingly, on application dated 24 th June, 2020 and 23rd June, 2020 the court finds no matter of contempt by the respondents which requires them to respond to. Applications are hereby dismissed. the costs shall abide the outcome of the claim.
This court is granted specialised mandate under the Constitution, 2010 under Article 162 to address employment and labour relations disputes and for connected purposes and under such constitutional mandate, there is the inherent power to punish for contempt.
An applicant in a contempt application has the onus to prove the existence of contempt and, in discharging this onus, the applicant must show this existence of contempt of Court beyond reasonable doubt
Contempt of court consists in unlawfully and intentionally violating the dignity, repute or authority of a judicial body, or interfering in the administration of justice in a matter pending before it.
The acts complained of must impede on the dignity, repute or authority of the court. Such must be deliberate and intentional. Such must have the effect of eroding the rule of law.
Issues in the judgment
#The judge's surname is printed as 'M. MBAR?' with a question mark, an apparent typographical error in the coram/signature block
The judgment inconsistently describes the parties, referring variously to the 1st applicant/1st respondent/1st defendant when describing the company and the claimant's role
The application date is given as 24th June 2020 in the opening and final orders, but the replying affidavit refers to Gazette Notice No.7678 of 16th September, 2020, which post-dates the stated application date
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Directline Assurance Company Limited & 6 others v Terry Wijenje & 5 others [2021] KEELRC 1430 (KLR)", Case Analysis (2021). Nairobi Employment and Labour Relations Court Case No.165 of 2020 (Application dated 24th June, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1430/eng@2021-04-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.