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ELRCDismissednull — petition number not stated in judgment (Kisumu ELRC, the petition in which judgment was delivered on 31st January 2024)

Otieno & 37 others v Union of Kenya Civil Servants & 3 others (Petition E027 of 2023) [2025] KEELRC 659 (KLR)

Employment and Labour Relations Court
4 March 2025
3,563 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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The Employment and Labour Relations Court in Kisumu dismissed a bid to punish union officials for contempt, finding no wilful disobedience of its earlier orders.

What this practically means

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Executive summary

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This was a ruling on the Petitioners' notice of motion dated 29th November 2024 in an Employment and Labour Relations Court petition at Kisumu, seeking a finding of contempt against the 2nd, 3rd and 4th Respondents (officials of the Union of Kenya Civil Servants) for disobedience of the court's judgment of 31st January 2024, which had found them in breach of fiduciary duty and required the Union's books of account to be availed for inspection within 15 days. The motion also sought a Kshs 10 million penalty, committal to civil jail, freezing of the Union's bank accounts, an independent audit, police security during audit, and suspension of the officials. On 10th December 2024 the court granted leave for a change of advocates and froze the accounts, but on 5th February 2025 it vacated the freeze order. The 2nd Respondent raised a preliminary objection on res judicata, exhaustion and functus officio; the Respondents denied wilful disobedience, contending the books were inspected on 14th February 2024, that the order was not specific about which documents were to be availed, and that the 1st Petitioner was barred from the National Delegates Conference only because of his suspension. The court held that contempt must be proved to a standard higher than a balance of probabilities, that wilful disregard was not established, that the Respondents did not abridge the Petitioners' rights, and that several prayers mimicked the Petition and relitigated determined issues. The application was dismissed with costs to the Respondents.

Questions the Court framed

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

  1. 1.Whether the 2nd Respondent's preliminary objection (res judicata, functus officio, exhaustion) is merited
  2. 2.Whether the Petitioners have met the threshold for granting contempt of court orders

Key legal issues

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01

Whether contempt of court was established against the 2nd, 3rd and 4th Respondents

Holding

Contempt was not established; the Respondents complied or at least did not wilfully disregard the order

Reasoning

The court found there was an invitation to inspect the books of account, albeit with a caveat against disclosure, and the Petitioners attended the conference called by the Union where they could raise their concerns. The Respondents did not abridge the Petitioners' rights nor act contrary to the directions in the judgment. The order was also not specific as to which documents were to be availed, negating wilful disobedience to the quasi-criminal standard required.

p. 7
02

Whether the prayers in the motion were res judicata or otherwise an abuse of process

Holding

Several prayers mimicked the Petition itself and formed the corpus of prior determinations; they could not be revisited in a post-judgment motion

Reasoning

The 2nd Respondent had objected that prayers 3, 4 and 5 were declined in Kisumu ELRC Petition No. E008 of 2024 and prayers 6 to 12 had been canvassed and denied by this court. The court agreed that relitigating determined issues in post-judgment applications serves no useful purpose, reinforcing the objection as part of the basis for dismissal.

p. 7

Legal principles established

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  • Contempt must be proved to a standard higher than a balance of probabilities because liberty is at stake
  • For contempt to lie, wilful failure, refusal or neglect to obey a court order must be established
  • Parties should not relitigate issues already determined by the Court in post-judgment applications

Court orders

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  1. 1.Dismissal of the Petitioners' application dated 29th November 2024
  2. 2.Costs of the application awarded to the Respondents

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Contempt jurisdiction of the Employment and Labour Relations Court over disobedience of its own judgment/orders

Relief refused

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Finding that the 2nd, 3rd and 4th Respondents are in contempt of the orders of 31st January 2024

Petitioner did not establish wilful disregard of the court order; no proof of contempt

p. 7

Fine/penalty of Kshs 10,000,000 with attachment of assets in default

Contempt not established; prayers presupposed a conviction

p. 6

Committal to civil jail for 6 months

Contempt not established to the required standard

p. 7

Freezing of the 1st Respondent's bank accounts and restraint on withdrawals

Prayers mimicked the Petition itself and exceeded the scope of the judgment; inappropriate to revisit determined issues

p. 7

Independent audit, appointment of audit firms, police security, and suspension of the 2nd to 4th Respondents

Did not arise from the judgment; declined as the motion did not satisfy the prerequisites

p. 7

Costs

Application dismissed with costs to the Respondents

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.

Upon conclusion of the assessment of the facts surrounding the alleged contempt, I am not satisfied that the Petitioner has established wilful disregard of the court order by the alleged contemnors.
p. 7Standard and proof of wilful disobedience
a contempt allegation must be proved on a higher standard that a balance of probability
p. 7Standard of proof in contempt proceedings
It is inappropriate for parties to litigate on issues already determined in prior pronouncements of the Court.
p. 7Res judicata in post-judgment applications
I accordingly dismiss the Petitioner applicant's application dated 29th November 2024 with costs to the Respondents.
p. 7Final orders/disposition
The Court in sum finds the motion before it does not satisfy the prerequisites for the court to grant the orders sought
p. 7Failure of the motion

Issues in the judgment

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minor

The inspection date is given inconsistently within the judgment

minor

Petition number of the suit itself is not stated anywhere in the judgment

minor

The court's own statement of the standard of proof is internally tense, describing contempt both as a criminal offence and as quasi-criminal

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, "Otieno & 37 others v Union of Kenya Civil Servants & 3 others (Petition E027 of 2023) [2025] KEELRC 659 (KLR)", Case Analysis (2025). null — petition number not stated in judgment (Kisumu ELRC, the petition in which judgment was delivered on 31st January 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/659/eng@2025-03-04

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