Otieno & 37 others v Union of Kenya Civil Servants & 3 others; Registrar of Trade Unions (Interested Party) (Petition E008 of 2024) [2024] KEELRC 819 (KLR)
The bottom line
#The court struck out a contempt case filed as a new petition, confirming contempt of court must be raised in the original case where the order was issued.
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 have delivered to the Court documents directed by the Court on 26th February 2024 in line with the subject judgment of the Court in Kisumu ELRC PET E027/2023
- 2.Whether the conduct of the Respondents in so far as their failure to comply with the judgment of the Court in Kisumu ELRC PET E027/2023 infringes on the right to access justice as well as the fair hearing rights of the Petitioners
- 3.If there is contempt of court by the Respondents
Key legal issues
#Correct procedure for initiating contempt proceedings
The Petition was incompetent because contempt should have been pursued in the original proceedings, Kisumu Petition No. E027 of 2023, not by filing a fresh petition.
The Court surveyed the legal framework after the High Court invalidated the Contempt of Court Act, holding that section 5 of the Judicature Act still stands. Relying on Christine Wangari Chege and Samuel N.M. Mweru, it stated the prevailing practice is that contempt is sought by application within the proceedings where the disobeyed orders were issued. Despite the constitutional command against procedural technicality, filing a new petition was procedurally wrong and the access-to-justice argument failed since the parties had already litigated the underlying dispute.
Effect of invalidation of the Contempt of Court Act
Section 5 of the Judicature Act governs contempt following the Act's invalidation.
The Court noted the High Court invalidated the Contempt of Court Act in Kenya Human Rights Commission v Attorney General, and adopted the reasoning in Samuel N.M. Mweru that the effect is that section 5 of the Judicature Act still stands as the legal basis for contempt, including its procedure and penalties.
Access to justice and fair hearing rights
The contempt petition did not implicate access to justice.
The Court reasoned that the parties had already accessed the Court, their grievances were heard and a determination made, so filing a new petition did not raise access-to-justice or fair-hearing concerns.
Legal principles established
#- An application for contempt should be commenced through an application in the proceedings where the orders said to have been disobeyed were issued
- The legal framework on contempt is founded on the Judicature Act, section 5, after the invalidation of the Contempt of Court Act
- All parties to a suit must be properly identified by name
Court orders
#- 1.The Petition is struck out
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Jurisdiction of the Employment and Labour Relations Court over trade union disputes and contempt; contempt framework under section 5 of the Judicature Act following the invalidation of the Contempt of Court Act
Relief refused
#Declaration that the 1st – 4th Respondents' failure to make available books of accounts is contempt of court
Contempt applications must be brought in the proceedings in which the orders were issued, not by a fresh petition
Order of mandamus compelling production of specified documents
The Petition as a whole was found incompetent and struck out
Costs of the Petition against the Respondents
Parties are all officials and/or members of the same trade union
Costs
The Petition is struck out with no order as to costs since the parties are all officials and/or members of the same trade union
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.
Under the prevailing practice, an application for contempt should be commenced through an application in the proceedings where the orders said to have been disobeyed were issued.
Since the Contempt of Court Act was invalidated, the legal framework on contempt is founded on the Judicature Act and more so section 5 of the Act.
The Court finds the instant Petition alleging contempt of court incompetent.
The Petition is struck out with no on costs since the parties are all oficials and or members of the same trade union.
Issues in the judgment
#Preliminary objection grounds refer to a meeting 'sought to be injuncted on 26th February 2014', an apparent typographical error for 2024
Typographical error in the costs order wording
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Otieno & 37 others v Union of Kenya Civil Servants & 3 others; Registrar of Trade Unions (Interested Party) (Petition E008 of 2024) [2024] KEELRC 819 (KLR)", Case Analysis (2024). Petition dated 22 February 2024 (contempt Petition; arising from Kisumu Petition No. E027 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/819/eng@2024-04-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.