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ELRCPartially AllowedContempt application dated 15th December 2023

Kenya National Union of Nurses v County Public Service Board of Nakuru & another; County Secretary, Dr Samuel Mwaura & 2 others (Contemnor) (Employment and Labour Relations Cause E029 of 2023) [2024] KEELRC 1313 (KLR)

Employment and Labour Relations Court
28 May 2024
5,135 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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Nakuru county officials were found guilty of disobeying a court order protecting casual nurses, though punishment has not yet been decided.

What this practically means

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Executive summary

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The Claimant Union moved this Court by a contempt application dated 15th December 2023 under Section 5(1) of the Judicature Act and related provisions, seeking committal to civil jail for six months of Dr. Samuel Mwaura (County Secretary), Ms Joyce Ndegwa (Secretary/CEO of the Board) and Dr. John Murima (Chief Officer Health Services) for disobeying inter-partes orders issued on 27th July 2023. Those orders stayed the implementation of a circular (DOHS/COMHS/31/5/1 of 31st May 2023) ending short-term contracts of casual/contract nurses and directed that the nurses continue rendering services pending determination of the claim. The Respondents contended that the circular had taken effect on 30th June 2023, before the orders issued, so the orders were overtaken by events and incapable of execution; that the nurses' contracts had lapsed and terminal dues paid; and that the orders were obtained without disclosure of a pending preliminary objection. The court held that the respondents did not deny knowledge of the orders, which were issued in the presence of their counsel and served. Their overtaken-by-events defence failed because they exhibited no evidence that the circular's contents were brought to the attention of the claimants' members, and no individual termination notices were produced. Having never appealed and never prosecuted their review application, the orders remained in force. The court found the Respondents/Contemnors guilty of contempt of the orders of 27th July 2023 and liable to punishment, with costs in the cause. No formal sentence of committal was pronounced in this ruling.

Questions the Court framed

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

  1. 1.Whether the terms of the orders of 27th July 2023 were clear and unambiguous and binding on the contemnors
  2. 2.Whether the contemnors had knowledge of or proper notice of the terms of the orders
  3. 3.Whether the contemnors acted in breach of the terms of the orders
  4. 4.Whether the contemnors' conduct was deliberate and wilful

Key legal issues

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01

Whether the respondents were in contempt of the orders of 27th July 2023

Holding

The court found the contemnors guilty of contempt

Reasoning

The orders of 27/7/2023 stayed the circular DOHS/COMHS/31/5/1 and required the casual/contract nurses to continue rendering services. The respondents did not deny knowledge of the orders, having been served and their counsel present in court when they issued. Their defence that the circular had already taken effect on 30th June 2023 failed because they exhibited no evidence that the circular's contents were brought to the attention of the claimants' members, and there was no termination notice to the individual nurses. They also never appealed and never prosecuted their review application, so the orders remained in force.

p. 10
02

Whether the orders were incapable of execution as overtaken by events

Holding

The overtaken-by-events defence failed for lack of evidence of implementation

Reasoning

The circular was addressed to medical superintendents and sub-county team leads, not to the nurses individually. The respondents produced no notice to the claimants' members indicating their employment was ending and no evidence that the circular's contents were communicated to them. In the absence of such proof, the court could not accept that the orders were spent, and the respondents' failure to appeal or prosecute their review application left the orders intact.

p. 10

Legal principles established

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  • A party who alleges that court orders were overtaken by events must show that their contents were brought to the attention of those affected; otherwise the orders remain enforceable

Court orders

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  1. 1.Finding that the Respondents/Contemnors are guilty of contempt in relation to the court's orders dated 27/7/2023 and are liable to punishment
  2. 2.Costs in the cause

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Section 5(1) of the Judicature Act, Section 3A of the Civil Procedure Act, Order 40 Rule 3 of the Civil Procedure Rules and Rule 32(2) of the Employment and Labour Relations Court (Procedure) Rules 2016

Relief refused

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Committal to civil jail for 6 months (not decided at this stage)

The court found the contemnors guilty and liable to punishment but did not pronounce a sentence of committal in this ruling

p. 10

Costs

Costs in the cause

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.

It is therefore my finding that indeed the Respondents contemnors are guilty of contempt in relation to this court's orders dated 27/7/2023 and are therefore liable to punishment. Costs in the cause.
p. 10Final orders/disposition - finding of contempt
In the absence of any evidence that the contends were brought to the attention of the claimants' members, the assertion that the orders of the court were overtaken by events cannot lie.
p. 10Overtaken-by-events defence
That the Respondents had knowledge of the order of 27/7/2023 is not denied. The said orders were issued on 27/7/2023 in court in the presence of counsels for the Respondents
p. 10Knowledge and service of orders

Issues in the judgment

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minor

Inconsistent dates for the court order under execution: the application and most of the judgment refer to orders issued on 27th July 2023, but paragraph 65 refers to 'orders dated 29th July 2023' and paragraph 36 states an application dated 29th June '2024' issued on '27th July, 2024'.

minor

Inconsistent circular reference numbers: DOHS/COMEHS/31/5/11 versus DOHS/COMHS/31/5/1.

material

The court found the contemnors guilty of contempt and stated they are 'liable to punishment', but no actual sentence or committal order appears in the final orders.

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, "Kenya National Union of Nurses v County Public Service Board of Nakuru & another; County Secretary, Dr Samuel Mwaura & 2 others (Contemnor) (Employment and Labour Relations Cause E029 of 2023) [2024] KEELRC 1313 (KLR)", Case Analysis (2024). Contempt application dated 15th December 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1313/eng@2024-05-28

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