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ELRCPartially AllowedPetition number not stated in the judgment (ruling on applications dated 4th and 5th November 2020)

Esther Njeri Maina v Kenyatta University [2021] KEELRC 1457 (KLR)

Employment and Labour Relations Court
28 January 2021
3,277 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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The Employment Court paused enforcement of a ruling that Kenyatta University make a former casual worker permanent, and dismissed her contempt bid because the officials she targeted were never properly joined to the case.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi (M. Mbaru, J) determines two applications arising from the judgment of 15th April 2020 in which the court declared the petitioner, a former casual employee of Kenyatta University, a permanent and pensionable employee entitled to a written contract. The respondent's application dated 4th November 2020 sought stay of execution pending Nairobi Civil Appeal No.261 of 2020, contending the appeal challenged the legal import of section 37 of the Employment Act and that the judgment would compel it to treat the petitioner favourably compared to about 3,000 similarly engaged workers. The petitioner's application dated 5th November 2020 sought to compel the Vice Chancellor, Deputy Vice Chancellor (Administration) and Acting Registrar (Administration) to process and deposit her employment contract and to cite them for contempt for allegedly blocking her access to work and withholding wages. The court held the interested parties had been irregularly joined without leave or order of the court, that a litigant cannot fish for interested parties post-judgment, and that contempt cannot be futuristic — an order must first issue and be served on the person responsible for implementation. The contempt application was dismissed. On stay, the court found the right of appeal under section 17 of the ELRC Act and Article 164(3) of the Constitution should not be rendered nugatory, the application was filed without delay, and the appeal raised the core legal issue of the conversion of the petitioner's employment. Stay of execution pending the appeal was granted, with costs to abide the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the 1st, 2nd and 3rd interested parties, not joined by leave or order of the court, could be compelled to process the petitioner's employment contract and be cited for contempt
  2. 2.Whether the alleged contempt of the orders of 15th April 2020, 31st July 2020 and 8th October 2020 was made out
  3. 3.Whether the respondent's application for stay of execution pending Nairobi Civil Appeal No. 261 of 2020 should be granted under Order 42 Rule 6(2) of the Civil Procedure Rules

Key legal issues

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01

Joinder and citation of interested parties in contempt proceedings

Holding

The orders sought against the alleged interested parties could not issue as they were irregularly joined without leave

Reasoning

The suit was between the petitioner and the respondent only. Under the Constitution, case law and section 2 of the Employment and Labour Relations Court Act, 2011, an interested party has a stake in proceedings and must be joined from the onset or seek leave to be enjoined. A petitioner cannot post-judgment invite persons to respond to completed proceedings. The addition being irregular, the orders sought could not issue, and the contempt application built on that joinder necessarily failed.

p. 3
02

Contempt of court orders

Holding

No contempt established; contempt cannot be contemplated into the future and requires service of the order on the person responsible

Reasoning

The petitioner founded contempt on the judgment of 15th April 2020 and the order of 8th October 2020. However, stay of execution granted on 15th April 2020 had not been set aside, and the alleged breach was premised on the future reopening of the university. An order must be issued and served on the identified officer or entity before contempt can arise; prospective disobedience cannot ground a contempt finding. The application dated 5th November 2020 was therefore without merit.

p. 4
03

Stay of execution pending appeal

Holding

Stay of execution granted pending the hearing and determination of Nairobi Civil Appeal No.261 of 2021

Reasoning

Section 17 of the Employment and Labour Relations Court Act, 2011 confers a right of appeal under Article 164(3) of the Constitution. Order 42 Rule 6(2) of the Civil Procedure Rules permits stay where sufficient cause is shown and the application is filed without delay. The respondent acted expeditiously in filing the appeal, the appeal challenges the application of section 37 of the Employment Act, and execution would render the appeal nugatory by destroying the subject matter.

p. 4

Legal principles established

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  • An interested party must either be joined from the onset or apply for leave to be enjoined; a litigant cannot unilaterally fish for interested parties post-judgment
  • Contempt of a court order cannot be futuristic; the order must first issue and be served on the person or entity responsible for implementation
  • A party dissatisfied with a judgment has an inherent right of appeal and to apply formally for stay of execution pending that appeal
  • Anything that renders an appeal nugatory impinges on the very right of appeal

Court orders

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  1. 1.The petitioner's application dated 5th November, 2020 is dismissed
  2. 2.The respondent's application dated 4th November, 2020 is allowed
  3. 3.Stay of execution granted pending hearing and determination of Nairobi Civil Appeal No.261 of 2021 – Kenyatta University versus Esther Njeri Maina
  4. 4.Costs shall abide the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court Act, 2011, section 17; Article 164(3) of the Constitution (right of appeal referred to in the ruling)

Relief refused

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Compulsion of the 1st, 2nd and 3rd interested parties to process and deposit the petitioner's employment contract in court

The interested parties were never joined to the suit by application, leave or order of the court; the addition was irregular

p. 3

Citation of the 1st, 2nd and 3rd interested parties for contempt of court and committal to civil jail

Contempt requires an order issued and served on the person/entity responsible; contempt cannot be contemplated into the future

p. 4

Costs

Costs shall abide the appeal

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

A petitioner cannot suit moto go out fishing for interested parties and post judgement invite them to respond to a suit or matter in proceedings already complete.
p. 4joinder of interested parties
An order must issue, served upon the officer/person/entity responsible and identified for implementation first. Contempt cannot be contemplated into the future.
p. 4contempt of court orders
Contempt of a court order is not futuristic.
p. 4contempt of court orders
That right does not abet simply because a party has sought to orally have a stay of execution and the Court denied or allowed that application.
p. 4right of appeal and stay of execution
Accordingly, application dated 5th November, 2020 is hereby dismissed. Application dated 4 th November, 2020 is hereby allowed; there shall be stay of execution pending hearing and determination of Nairobi Civil Appeal No.261 of 2021 – Kenyatta University versus Esther Njeri Maina; and costs shall abide the appeal.
p. 5final orders / disposition

Issues in the judgment

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minor

The judgment dates the judgment delivered in the main suit inconsistently, at one point as '15 th April, 20220' and elsewhere as 15th April, 2020

minor

The final orders refer to Nairobi Civil Appeal No.261 of 2021 while the body of the ruling repeatedly refers to Nairobi Civil Appeal No.261 of 2020

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Esther Njeri Maina v Kenyatta University [2021] KEELRC 1457 (KLR)", Case Analysis (2021). Petition number not stated in the judgment (ruling on applications dated 4th and 5th November 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1457/eng@2021-01-28

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