Ado & another v Mandera Water & Sewerage Company Limited & 2 others (Employment and Labour Relations Petition E150 of 2021) [2024] KEELRC 2590 (KLR)
The bottom line
#A Kenyan court ruled you cannot jail officials for contempt over a court-ordered payment until the exact amount owed is calculated and they refuse to pay.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether notice to show cause should issue to the 1st respondent's board of directors Bare Ali Adan, Amina Osman Muslima, Mohamed Ali Shuria and Saadia Mohamed Kulow and the 2nd Respondent Abdikadir Tache Mohamed to show cause why they should not be ordered committed to civil jail for failure to obey the court orders in the Judgment of 25th January,2022
Key legal issues
#Whether contempt/committal to civil jail could issue where the judgment did not quantify the amount payable and parties had not agreed on computation
The application was premature and unmerited; committal cannot issue until the amount payable is clear and refusal to pay demonstrated
The judgment of 25th January 2022 directed payment of allowances and benefits without fixing a figure. The parties never filed a consent on the amount. Only the taxed costs of Kshs 231,550/= were certain. The Respondents acknowledged willingness to pay subject to lawful computation under the Public Finance Management Act, SRC guidelines and Government Circular. Without a clear amount and demonstrated refusal, contempt or committal cannot issue.
Whether the Respondents displayed the dishonesty or fraudulently requisite for committal to civil jail
No dishonesty was found; the 1st Respondent, as a public body spending taxpayers' money, could only pay once sums were ascertained per the applicable guidelines
The court applied the principle that only a dishonest or fraudulent debtor is liable to arrest and committal. The 1st Respondent, being a public body funded by taxpayers, must be accountable and can only pay sums ascertained under the PFM Act, SRC guidelines and Government Circular. Absence of dishonesty defeated the committal prayer.
Legal principles established
#- A person is not liable to be committed to civil jail for inability to pay a debt, but a dishonest and fraudulent debtor may be arrested and committed
- Arrest and committal under sections 38 and 40 of the Civil Procedure Act is constitutional provided there is strict adherence to the law
- Contempt/committal cannot issue where the decretal amount is unascertained and the judgment debtor is willing to pay once computation is lawfully done
Court orders
#- 1.The Applicants' application dated June 19, 2023 is dismissed
- 2.Parties directed to compute the allowances and benefits payable to the Applicants as per the Public Finance Management Act, the Salaries and Remuneration Commission guidelines dated 16th April 2014 and Government Circular MSPS.2/1A VOLIII/1A(119) dated 2nd August 2013 within thirty (30) days and file the consent in court for adoption as an order of the court
- 3.In the event of inability to agree, each party to independently file their computation for the Court to determine the correct computation
- 4.No orders as to costs
- 5.Matter to be mentioned on 16th of December, 2024 to confirm compliance
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 159(2)(b) & (e) and 162(2)(a) of the Constitution of Kenya; sections 12 and 13 of the Employment and Labour Relations Court Act
Relief refused
#Order compelling the named board directors and the 2nd Respondent to appear and show cause why they should not be committed to civil jail for six months or fined Kshs 10,000,000/= each
Application found premature; the decretal amount was not yet ascertained and the Respondents were willing to pay once computation was done per the law
Costs
No orders as to costs
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.
In conclusion the Applicants' application dated June 19, 2023 is found premature, unmerited and is hereby dismissed with no orders as to costs.
The Parties must therefore first agree on the right computations before the Respondents can be held in contempt.
until the amount is clear and the Respondents demonstrated refusal to pay despite being called upon to do so, an order for contempt of court or committal to civil jail cannot issue.
A person is not liable to be committed to civil jail for inability to pay a debt but a dishonest and fraudulent debtor is liable to be punished by way of arrest and committal.
Issues in the judgment
#Paragraph 3 of the application's provisions cites 'Section 3991)(2)(g) of the High Court(Organization and Administration) Act 2015', an apparently typographical provision reference
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ado & another v Mandera Water & Sewerage Company Limited & 2 others (Employment and Labour Relations Petition E150 of 2021) [2024] KEELRC 2590 (KLR)", Case Analysis (2024). Application dated 19th June, 2023 (arising from Petition determined by judgment of 25th January, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2590/eng@2024-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.